CONFORMED COPY
Exhibit 6.1
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CREDIT AGREEMENT
Dated as of June 28, 2001,
among
DANAHER CORPORATION,
as the Borrower,
The Lenders Party Hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
Letter of Credit Issuer,
SUNTRUST BANK and WACHOVIA BANK, N.A.,
as
Co-Documentation Agents,
THE BANK OF NOVA SCOTIA,
as
a Co-Lead Arranger,
and
BANC OF AMERICA SECURITIES LLC,
as
a Co-Lead Arranger and Sole Book Manager.
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS................................................................. 1
1.01 Defined Terms............................................................................... 1
1.02 Other Interpretive Provisions............................................................... 17
1.03 Accounting Terms............................................................................ 18
1.04 Rounding.................................................................................... 18
1.05 References to Agreements and Laws........................................................... 18
1.06 Exchange Rates.............................................................................. 18
1.07 Redenomination of Certain Foreign Currencies................................................ 19
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS........................................................... 19
2.01 Committed Loans............................................................................. 19
2.02 Borrowings, Conversions and Continuations of Committed Loans................................ 20
2.03 Increase in Commitments..................................................................... 22
2.04 Letters of Credit........................................................................... 23
2.05 Swing Line Loans............................................................................ 31
2.06 Prepayments................................................................................. 33
2.07 Reduction or Termination of Commitments..................................................... 34
2.08 Repayment of Loans.......................................................................... 35
2.09 Interest.................................................................................... 35
2.10 Fees........................................................................................ 36
2.11 Computation of Interest and Fees............................................................ 36
2.12 Evidence of Debt............................................................................ 36
2.13 Payments Generally.......................................................................... 37
2.14 Sharing of Payments......................................................................... 39
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY......................................................... 40
3.01 Taxes....................................................................................... 40
3.02 Illegality.................................................................................. 41
3.03 Inability to Determine Rates................................................................ 41
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurocurrency Rate Loans... 42
3.05 Funding Losses.............................................................................. 42
3.06 Matters Applicable to all Requests for Compensation......................................... 43
3.07 Survival.................................................................................... 43
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS....................................................... 44
4.01 Conditions of Initial Credit Extension...................................................... 44
4.02 Conditions to all Credit Extensions......................................................... 45
ARTICLE V. REPRESENTATIONS AND WARRANTIES................................................................... 45
5.01 Existence, Qualification and Power; Compliance with Laws.................................... 46
5.02 Authorization; No Contravention............................................................. 46
5.03 Governmental and Other Authorizations...................................................... 46
5.04 Binding Effect.............................................................................. 46
5.05 Financial Statements; No Material Adverse Effect............................................ 46
5.06 Litigation.................................................................................. 47
5.07 No Default.................................................................................. 47
5.08 ERISA Compliance............................................................................ 47
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.............. 48
5.10 Disclosure.................................................................................. 48
ARTICLE VI. AFFIRMATIVE COVENANTS........................................................................... 48
6.01 Financial Statements........................................................................ 49
6.02 Certificates; Other Information............................................................. 49
6.03 Notices..................................................................................... 50
6.04 Payment of Obligations...................................................................... 50
6.05 Preservation of Existence, Etc.............................................................. 51
6.06 Maintenance of Properties................................................................... 51
6.07 Maintenance of Insurance.................................................................... 51
6.08 Compliance with Laws........................................................................ 51
6.09 Books and Records........................................................................... 51
6.10 Inspection Rights........................................................................... 52
6.11 Compliance with ERISA....................................................................... 52
6.12 Use of Proceeds............................................................................. 52
ARTICLE VII. NEGATIVE COVENANTS............................................................................. 52
7.01 Liens....................................................................................... 52
7.02 Fundamental Changes......................................................................... 54
7.03 Restrictive Agreements...................................................................... 55
7.04 Transactions with Affiliates................................................................ 55
7.05 Use of Proceeds............................................................................. 55
7.06 Leverage.................................................................................... 55
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES................................................................ 55
8.01 Events of Default........................................................................... 55
8.02 Remedies Upon Event of Default.............................................................. 57
ARTICLE IX. ADMINISTRATIVE AGENT............................................................................ 58
9.01 Appointment and Authorization of Administrative Agent....................................... 58
9.02 Delegation of Duties........................................................................ 59
9.03 Liability of Administrative Agent........................................................... 59
9.04 Reliance by Administrative Agent............................................................ 59
9.05 Notice of Default........................................................................... 60
9.06 Credit Decision; Disclosure of Information by Administrative Agent.......................... 60
9.07 Indemnification of Administrative Agent..................................................... 61
9.08 Administrative Agent in its Individual Capacity............................................. 61
9.09 Successor Administrative Agent.............................................................. 62
9.10 Other Agents; Lead Managers................................................................. 62
ARTICLE X. MISCELLANEOUS.................................................................................... 63
10.01 Amendments, Etc............................................................................. 63
10.02 Notices and Other Communications; Facsimile Copies.......................................... 64
10.03 No Waiver; Cumulative Remedies.............................................................. 65
10.04 Attorney Costs, Expenses and Taxes.......................................................... 65
10.05 Indemnification by the Borrower............................................................. 66
10.06 Payments Set Aside.......................................................................... 66
10.07 Successors and Assigns...................................................................... 67
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10.08 Confidentiality............................................................................. 70
10.09 Set-off..................................................................................... 70
10.10 Interest Rate Limitation.................................................................... 71
10.11 Counterparts................................................................................ 71
10.12 Integration................................................................................. 71
10.13 Survival of Representations and Warranties.................................................. 71
10.14 Severability................................................................................ 72
10.15 Foreign Lenders............................................................................. 72
10.16 Removal and Replacement of Lenders.......................................................... 73
10.17 Governing Law............................................................................... 74
10.18 Waiver of Right to Trial by Jury............................................................ 75
SIGNATURES............................................................................................. S-1
SCHEDULES
2.01 Commitments and Pro Rata Shares
5.06 Litigation
7.01 Existing Liens
10.02 Eurocurrency and Domestic Lending Offices, Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Committed Loan Note
D Swing Line Note
E Compliance Certificate
F Assignment and Assumption Agreement
G Opinion of Counsel
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of June 28,
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2001, among DANAHER CORPORATION, a Delaware corporation (the "Borrower"), each
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lender from time to time party hereto (collectively, the "Lenders" and
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individually, a "Lender"), BANC OF AMERICA SECURITIES LLC, as the Sole Book
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Manager and a Co-Lead Arranger, THE BANK OF NOVA SCOTIA, as a Co-Lead Arranger,
SUNTRUST BANK and WACHOVIA BANK, N.A., each as a Co-Documentation Agent, and
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and Letter of
Credit Issuer.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Administrative Agent" means Bank of America in its capacity as
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administrative agent under any of the Loan Documents.
"Administrative Agent's Office" means the Administrative Agent's
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applicable address and, as appropriate, applicable account as set forth on
Schedule 10.02, or such other address or account as the Administrative Agent may
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from time to time notify to the Borrower and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
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indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities having ordinary voting power for the
election of directors or managing general partners, or (b) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
"Agent-Related Persons" means the Administrative Agent (including any
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successor administrative agent), together with its Affiliates (including, in the
case of Bank of America in its capacity as the Administrative Agent, the
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"Aggregate Commitments" has the meaning set forth in the definition of
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"Commitment."
"Agreement" has the meaning set forth in the introductory paragraph
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hereto.
Credit Agreement
"Applicable Rate" means, from time to time, the following percentages
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per annum, based upon the Debt Rating as set forth below:
Applicable Rate
Pricing Debt Ratings Eurocurrency
Level S&P/Moody's Facility Fee Rate +
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Letters of Utilization
Credit Fee
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1 * AA-/Aa3 00.065% 00.160% 00.050%
2 * A+/A1 00.080% 00.170% 00.050%
3 * A/A2 00.090% 00.210% 00.100%
4 * A-/A3 00.100% 00.300% 00.100%
5 * BBB+/Baa1 00.125% 00.375% 00.125%
6 ** BBB+/Baa1 00.175% 00.575% 00.125%
For all purposes hereunder, "Debt Rating" means, as of any date of
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determination, the rating as determined by either S&P or Moody's of the
Borrower's non-credit-enhanced, senior unsecured long-term debt; provided that
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if a Debt Rating is issued by each of the foregoing rating agencies, then the
higher of such Debt Ratings shall apply (with Pricing Level 1 being the highest
and Pricing Level 6 being the lowest), unless there is a split in Debt Ratings
of more than one level, in which case the level that is one level higher than
the lower Debt Rating shall apply. Initially, the Applicable Rate shall be
determined based upon the Debt Rating specified in the certificate delivered
pursuant to Section 4.01(a)(vii). Thereafter, each change in the Applicable
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Rate resulting from a publicly announced change in the Debt Rating shall be
effective, in the case of an upgrade, during the period commencing on the date
of delivery by the Borrower to the Administrative Agent of notice thereof
pursuant to Section 6.03(f) and ending on the date immediately preceding the
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effective date of the next such change and, in the case of a downgrade, during
the period commencing on the date of the public announcement thereof and ending
on the date immediately preceding the effective date of the next such change.
"Arranger" means Banc of America Securities LLC, in its capacity as a
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co-lead arranger and sole book manager.
"Assignment and Assumption Agreement" means an Assignment and
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Assumption Agreement substantially in the form of Exhibit F.
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"Attorney Costs" means and includes all fees and disbursements of any
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law firm or other external counsel and, to the extent not duplicative, the
allocated cost of internal legal services and all disbursements of internal
counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
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capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Off-Balance Sheet Obligation, the capitalized or
principal amount of the remaining payments under the relevant lease or other
agreement that would appear on a balance sheet of such Person prepared
* Denotes More than or Equal to
** Denotes Less than
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Credit Agreement
as of such date in accordance with GAAP if such lease or other agreement were
accounted for as a capital lease or a loan transaction.
"Audited Financial Statements" means the audited consolidated balance
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sheet of the Borrower and its Subsidiaries for the fiscal year ended December
31, 2000, and the related consolidated statements of income or operations,
shareholders' equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries.
"Bank of America" means Bank of America, N.A.
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"Base Rate" means for any day a fluctuating rate per annum equal to
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the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by Bank
of America as its "prime rate." The prime rate is a rate set by Bank of America
based upon various factors, including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in the prime rate announced by Bank of America
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Committed Loan" means a Committed Loan denominated in
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Dollars that is a Base Rate Loan.
"Base Rate Loan" means a Loan that bears interest based on the Base
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Rate.
"Borrower" has the meaning set forth in the introductory paragraph
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hereto.
"Borrowing" means a Committed Borrowing or a Swing Line Borrowing, as
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the context may require.
"Business Day" means:
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(a) any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located; and
(b) if such day relates to any Eurocurrency Rate Loan, a day which
is described in subclause (a) and which is a day (i) on which dealings are
conducted by and between banks in the London interbank market and (ii)
commercial banks are not authorized to be closed in London or in the country of
issue of the currency in which such Loan is denominated (which in the case of a
Loan denominated in the Euro, is a Target Day).
"Calculation Date" means:
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(a) in respect of any Borrowing denominated in a Foreign Currency,
(i) the date falling two Business Days prior to the date of any such Borrowing,
(ii) the date falling two Business Days prior to the date of each continuation
of such Borrowing, (iii) the date such Borrowing is automatically converted to
Dollars pursuant to the terms of this Agreement and (iv) any other day specified
by the Administrative Agent from time to time; and
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Credit Agreement
(b) in respect of any Letter of Credit denominated in a Foreign
Currency, (i) the date such Letter of Credit is issued, (ii) the first Business
Day of each calendar month during any period that such Letter of Credit remains
outstanding, (iii) the date the Borrower's reimbursement Obligation in respect
of such Letter of Credit is automatically converted to Dollars pursuant to the
terms of this Agreement and (iv) any other day specified by the Administrative
Agent from time to time.
"Cash Collateralize" means to pledge and deposit with or deliver to
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the Administrative Agent, for the benefit of the Letter of Credit Issuer and the
Lenders, as collateral for the Letter of Credit Obligations, cash or deposit
account balances in the applicable Committed Currency pursuant to documentation
in form and substance satisfactory to the Administrative Agent and the Letter of
Credit Issuer (which documents are hereby consented to by the Lenders).
Derivatives of such term shall have corresponding meanings. The Borrower hereby
grants the Administrative Agent, for the benefit of the Letter of Credit Issuer
and the Lenders, a Lien on all such cash and deposit account balances so
pledged, deposited or delivered to the Administrative Agent for the benefit of
the Letter of Credit Issuer and the Lenders. Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of America.
"Change of Control" means, with respect to any Person, an event or
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series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
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13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding (i) any
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employee benefit plan of such person or its subsidiaries, and any person or
entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan and (ii) Steven M. Rales and Mitchell P. Rales)
becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be deemed
to have "beneficial ownership" of all securities that such person or group has
the right to acquire (such right, an "option right"), whether such right is
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exercisable immediately or only after the passage of time), directly or
indirectly, of 30% or more of the equity securities of such Person entitled to
vote for members of the board of directors or equivalent governing body of such
Person on a partially-diluted basis (i.e., taking into account all such
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securities that such person or group has the right to acquire pursuant to any
option right); or
(b) during any period of 12 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of such
Person cease to be composed of individuals (i) who were members of that board or
equivalent governing body on the first day of such period, (ii) whose election
or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and (ii)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body.
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Credit Agreement
"Closing Date" means the first date all the conditions precedent in
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Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
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case of Section 4.01(b), waived by the Person entitled to receive the applicable
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payment).
"Co-Agents" means, collectively, The Bank of Nova Scotia, SunTrust
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Bank and Wachova Bank, N.A., each in their respective capacity as a co-agent
hereunder.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Commitment" means, as to each Lender, its obligation to (i) make
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Committed Loans to the Borrower pursuant to Section 2.01 and (ii) purchase
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participations in Letter of Credit Obligations and Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule 2.01, as such amount may be
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reduced or adjusted from time to time in accordance with this Agreement
(collectively for all Lenders, the "Aggregate Commitments").
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"Committed Borrowing" means a Borrowing consisting of simultaneous
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Committed Loans of the same Type and having the same Interest Period, which
Borrowing is made by each of the Lenders pursuant to Section 2.01.
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"Committed Currency" means Dollars, Euros, Krona and Sterling.
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"Commitment Increase Effective Date" has the meaning set forth in
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Section 2.03.
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"Committed Loan" has the meaning specified in Section 2.01.
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"Committed Loan Note" means a promissory note made by the Borrower in
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favor of a Lender evidencing Committed Loans made by such Lender, substantially
in the form of Exhibit C.
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"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
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(b) a conversion of Committed Loans from one Type to the other or (c) a
continuation of Committed Loans as the same Type, pursuant to Section 2.02(a),
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which notice, if in writing, shall be substantially in the form of Exhibit A.
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"Compliance Certificate" means a certificate substantially in the form
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of Exhibit E.
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"Consolidated Funded Indebtedness" means, as of any date of
--------------------------------
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) Attributable Indebtedness in respect of capital leases,
and (c) without duplication, all Guaranty Obligations with respect to
Indebtedness of the types specified in subsections (a) and (b) above of Persons
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other than the Borrower or any Subsidiary.
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Credit Agreement
"Contractual Obligation" means, as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means, as the context may require, (a) a Committed
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Borrowing, (b) a Swing Line Loan Borrowing or (c) the issuance or renewal of any
Letter of Credit.
"Debt Rating" has the meaning set forth in the definition of
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"Applicable Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
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America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
"Default" means any event that, with the giving of any notice, the
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passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
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(b) 2% per annum; provided, however, that with respect to a Eurocurrency Rate
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Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Loan plus 2% per
annum, in each case to the fullest extent permitted by applicable Laws.
"Disposition" or "Dispose" means the sale, transfer, license or other
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disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" means lawful money of the United States of America.
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"Dollar Equivalent" means, on any date of determination, with respect
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to any amount denominated in any Foreign Currency, the equivalent in Dollars of
such amount as determined by the Administrative Agent pursuant to Section
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1.06(b) using the applicable Exchange Rate.
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"EEMU Legislation" means the legislative measures of the European
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Economic and Monetary Union for the introduction of, changeover to or operation
of the Euro in one or more member states.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
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"ERISA" means the Employee Retirement Income Security Act of 1974 and
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any regulations issued pursuant thereto.
"ERISA Affiliate" means any trade or business (whether or not
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incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the
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Credit Agreement
Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code, while under such common control).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
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Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"Euro" means the lawful currency of the European Economic and Monetary
----
Union as constituted by the Treaty on European Economic and Monetary Union and
as referred to in the EEMU Legislation.
"Eurocurrency" means when used in reference to any Loan or Borrowing,
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refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Eurocurrency Rate.
"Eurocurrency Rate" means for any Interest Period with respect to any
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Eurocurrency Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in the applicable
Committed Currency (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in the applicable Committed Currency (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
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Credit Agreement
(c) if the rates referenced in the preceding subsections (a) and (b)
are not available, the rate per annum determined by the Administrative
Agent as the rate of interest at which deposits in the applicable Committed
Currency for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted by Bank of America and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the London interbank eurocurrency market at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period.
"Eurocurrency Rate Committed Loan" means a Committed Loan that bears
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interest at a rate based on the Eurocurrency Rate.
"Eurocurrency Rate Loan" means a Loan that bears interest based on the
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Eurocurrency Rate.
"Event of Default" means any of the events or circumstances specified
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in Article VIII.
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"Exchange Rate" means on any day, with respect to any Foreign
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Currency, the rate at which such Foreign Currency may be exchanged into Dollars
(or, for purposes of any provision of this Agreement requiring or permitting
the conversion of Loans denominated in a Foreign Currency to Loans denominated
in Dollars, the rate at which Dollars may be exchanged into such Foreign
Currency), which shall be the quoted spot rate of exchange of the Administrative
Agent in the market where the Administrative Agent's foreign currency exchange
operations in respect of such Foreign Currency are then being conducted, prior
to 4:00 p.m., Local Time, on such date for the purchase of Dollars (or such
Foreign Currency, as the case may be) for delivery two Business Days later;
provided that if at the time of any such determination, for any reason, no such
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spot rate is being quoted, the Administrative Agent may use any reasonable
method it deems appropriate to determine such rate, and such determination shall
be presumed correct absent manifest error.
"Federal Funds Rate" means, for any day, the rate per annum equal to
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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 by the Federal Reserve Bank on the Business Day next
succeeding such day; provided that (a) if such day is not a Business Day, the
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Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" has the meaning specified in Section 2.10(c).
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"Foreign Currency" means any Committed Currency other than Dollars.
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"Foreign Currency Sublimit" means an amount equal to the lesser of (a)
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$200,000,000 and (b) 50% of the Aggregate Commitments.
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Credit Agreement
"Foreign Lender" has the meaning specified in Section 10.15.
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"FRB" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"GAAP" means United States generally accepted accounting principles
----
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession, that are applicable to the circumstances as of the date of
determination, consistently applied.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, as to any Person, any (a) any obligation,
-------------------
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the
payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person.
The amount of any Guaranty Obligation shall be deemed to be an amount equal to
the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guaranty Obligation is made or, if not stated
or determinable, the maximum reasonably anticipated liability in respect thereof
as determined by the guarantying Person in good faith.
"Indebtedness" means, as to any Person at a particular time, all of
------------
the following, whether or not included as indebtedness or liabilities in
accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
9
Credit Agreement
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances,
bank guaranties, surety bonds and similar instruments;
(c) all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business and obligations contingent upon satisfactory completion
of a material condition precedent);
(d) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(e) capital leases and Off-Balance Sheet Obligations; and
(f) all Guaranty Obligations of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person (subject only to customary exceptions
acceptable to the Required Lenders). The amount of any capital lease or Off-
Balance Sheet Obligation as of any date shall be deemed to be the amount of
Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
----------------------- -------------
"Indemnitees" has the meaning set forth in Section 10.05.
----------- -------------
"Interest Payment Date" means, (a) as to any Loan (other than each
---------------------
Base Rate Loan), the last day of each Interest Period applicable to such Loan;
provided, however, that if any Interest Period for a Eurocurrency Rate Loan
- -------- -------
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan (including each Swing Line Loan), the last Business
Day of each March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurocurrency Rate Loan, the period
---------------
commencing on the date such Eurocurrency Rate Loan is disbursed or converted to
or continued as a Eurocurrency Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the Borrower in its Committed Loan
Notice provided that:
--------
(a) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless, in
the case of a Eurocurrency Rate Loan, such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
10
Credit Agreement
(b) any Interest Period pertaining to a Eurocurrency Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(c) no Interest Period shall extend beyond the scheduled Maturity
Date.
"IRS" means the United States Internal Revenue Service.
---
"Krona" means the lawful money of Sweden.
-----
"Laws" means, collectively, all statutes, treaties, rules, guidelines,
----
regulations, ordinances, codes and administrative or judicial precedents or
authorities of any Governmental Authority, including the interpretation or
administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case
whether or not having the force of law, including, without limitation, any
thereof relating to environmental, health, safety and land use matters
applicable to any property.
"Lender" has the meaning specified in the introductory paragraph
------
hereto and, as the context requires, includes the Letter of Credit Issuer and
the Swing Line Lender.
"Lending Office" means, with respect to each Type of Loan, the
--------------
applicable office of each Lender described as such on Schedule 10.02, in any
--------------
Assignment and Acceptance or such other office or offices as a Lender may from
time to time notify the Borrower and the Administrative Agent.
"Letter of Credit" means any letter of credit denominated in a
----------------
Committed Currency issued hereunder. A Letter of Credit may be a commercial
letter of credit or a standby letter of credit.
"Letter of Credit Advance" means, with respect to each Lender, such
------------------------
Lender's participation in any Letter of Credit Borrowing in accordance with its
Pro Rata Share.
"Letter of Credit Application" means an application and agreement for
----------------------------
the issuance or amendment of a letter of credit in the form from time to time in
use by the Letter of Credit Issuer.
"Letter of Credit Borrowing" means an extension of credit resulting
--------------------------
from a drawing under any Letter of Credit which has not been reimbursed on the
date when made or refinanced as a Committed Borrowing.
"Letter of Credit Credit Extension" means, with respect to any Letter
---------------------------------
of Credit, the issuance thereof or extension of the expiry date thereof, or the
renewal or increase of the amount thereof.
11
Credit Agreement
"Letter of Credit Expiration Date" means the day that is seven days
--------------------------------
prior to the Maturity Date (or, if such day is not a Business Day, the next
preceding Business Day).
"Letter of Credit Issuer" means Bank of America in its capacity as
-----------------------
issuer of Letters of Credit hereunder, or any successor issuer of Letters of
Credit hereunder.
"Letter of Credit Obligations" means, as at any date of determination,
----------------------------
the aggregate undrawn face amount of all outstanding Letters of Credit plus the
----
aggregate of all Unreimbursed Amounts, including all Letter of Credit
Borrowings.
"Letter of Credit Sublimit" means an amount equal to the lesser of the
-------------------------
Aggregate Commitments and $100,000,000. The commitment of the Letter of Credit
Issuer to issue Letters of Credit hereunder is part of, and not in addition to,
the Aggregate Commitments.
"Leverage Ratio" means, as of any date of determination, for the
--------------
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) the sum of such
Consolidated Funded Indebtedness plus Shareholders' Equity as of such date.
----
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Laws of any jurisdiction), including the
interest of a purchaser of accounts receivable.
"Loan" means an extension of credit by a Lender to the Borrower under
----
Article II in the form of a Committed Loan or a Swing Line Loan.
- ----------
"Loan Documents" means this Agreement, each Note, the Fee Letter, each
--------------
Request for Credit Extension, each Compliance Certificate and each document and
instrument delivered in connection therewith.
"Local Time" means, (a) in the case of Base Rate Loans, New York City
----------
time, and (b) in the case of Eurocurrency Rate Loans, London time.
"Material Adverse Effect" means (a) a material adverse change in, or a
-----------------------
material adverse effect upon, the business, assets, liabilities (actual or
contingent), operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole; (b) a material impairment of the ability of the
Borrower to perform its obligations under any Loan Document to which it is a
party; (c) a material adverse effect upon the legality, validity, binding effect
or enforceability against the Borrower of any Loan Document to which it is a
party; or (d) a material adverse effect upon the rights and remedies of the
Administrative Agent or any Lender under any Loan Document.
"Maturity Date" means (a) June 26, 2006, or (b) such earlier date upon
-------------
which the Aggregate Commitments may be terminated in accordance with the terms
hereof.
12
Credit Agreement
"Moody's" means Moody's Investors Service, Inc. and any successor
-------
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
------------------
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
three calendar years, has made or been obligated to make contributions.
"Net Tangible Assets of the Borrower and its Subsidiaries" means, as
--------------------------------------------------------
at any particular date of determination, the total amount of assets (less
applicable reserves and other properly deductible items ) after deducting
therefrom (a) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed) and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangible assets, as set forth in the
most recent balance sheet of the Borrower and its Subsidiaries and computed in
accordance with GAAP.
"Notes" means, collectively, the Committed Loan Notes and the Swing
-----
Line Note.
"Obligations" means all advances to, and debts, liabilities,
-----------
obligations, covenants and duties of, the Borrower arising under any Loan
Document, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement by or against the
Borrower or any Affiliate thereof of any proceeding under any Debtor Relief Laws
naming such Person as the debtor in such proceeding.
"Off-Balance Sheet Obligation" means the monetary obligation of a
----------------------------
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, (b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment) or (c) an
agreement for the sale of receivables or like assets creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, could be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Organization Documents" means (a) with respect to any corporation,
----------------------
the certificate or articles of incorporation and the bylaws; (b) with respect to
any limited liability company, the articles of formation and operating
agreement; and (c) with respect to any partnership, joint venture, trust or
other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
secretary of state or other department in the state of its formation, in each
case as amended from time to time.
"Outstanding Amount" means (a) with respect to Committed Loans
------------------
denominated in Dollars and Swing Line Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of such Loans occurring on such date; (b) with respect
to Committed Loans denominated in a Foreign Currency
13
Credit Agreement
on any date, the Dollar Equivalent of the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
such Loans occurring on such date; (c) with respect to Letters of Credit
denominated in Dollars on any date, the aggregate amount of Letter of Credit
Obligations in respect of such Letters of Credit on such date after giving
effect to any changes in the aggregate amount of such Letter of Credit
Obligations as of such date; and (d) with respect to Letters of Credit
denominated in a Foreign Currency on any date, the Dollar Equivalent of the
aggregate amount of Letter of Credit Obligations in respect of such Letters of
Credit on such date after giving effect to any changes in the aggregate amount
of such Letter of Credit Obligations as of such date.
"Participant" has the meaning specified in Section 10.07(d).
----------- ----------------
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Pension Plan" means any "employee pension benefit plan" (as such term
------------
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer plan
(as described in Section 4064(a) of ERISA) has made contributions at any time
during the immediately preceding five plan years.
"Person" means any individual, trustee, corporation, general
------
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority or other legal entity.
"Plan" means any "employee benefit plan" (as such term is defined in
----
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.
"Pro Rata Share" means, with respect to each Lender, the percentage
--------------
(carried out to the ninth decimal place) of the Aggregate Commitments set forth
opposite the name of such Lender on Schedule 2.01, as such share may be adjusted
-------------
as contemplated herein.
"Register" has the meaning set forth in Section 10.07(c).
-------- ----------------
"Reportable Event" means any of the events set forth in Section
----------------
4043(c) of ERISA, other than events for which the 30 day notice period has been
waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
----------------------------
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to a Letter of Credit Extension, a Letter of Credit Application, and (c)
with respect to a Swing Line Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination, Lenders
----------------
whose Voting Percentages aggregate more than 50%.
"Reset Date" has the meaning set forth in Section 1.06.
---------- ------------
14
Credit Agreement
"Responsible Officer" means the chief executive officer, president,
-------------------
chief financial officer, treasurer, assistant treasurer, corporate controller or
any vice president or executive vice president of the Borrower who is the
subject of an incumbency certificate delivered to the Administrative Agent
pursuant to Article IV or otherwise. Any document delivered hereunder that is
----------
signed by a Responsible Officer of the Borrower shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other
action on the part of the Borrower and such Responsible Officer shall be
conclusively presumed to have acted on behalf of the Borrower.
"S&P" means Standard & Poor's Ratings Services, a division of The
---
McGraw-Hill Companies, Inc. and any successor thereto.
"Shareholders' Equity" means, as of any date of determination for the
--------------------
Borrower and its Subsidiaries on a consolidated basis, shareholders' equity as
of that date determined in accordance with GAAP.
"Sterling" or "(Pounds)" means the lawful money of the United Kingdom
-------- --------
of Great Britain and Northern Ireland.
"Subsidiary" of a Person means a corporation, partnership, joint
----------
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
-------------
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
----------------
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
----------------------
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out
15
Credit Agreement
and termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a) the
amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as
determined based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts (which may
include any Lender).
"Swing Line" means the revolving credit facility made available by the
----------
Swing Line Lender pursuant to Section 2.05.
------------
"Swing Line Borrowing" means a borrowing of a Swing Line Loan pursuant
--------------------
to Section 2.05.
------------
"Swing Line Lender" means Bank of America in its capacity as provider
-----------------
of Swing Line Loans, or any successor swing line lender hereunder.
"Swing Line Loan" has the meaning specified in Section 2.05(a).
--------------- ---------------
"Swing Line Note" means a promissory note made by the Borrower in
---------------
favor of the Swing Line Lender evidencing Swing Line Loans made by such Lender,
substantially in the form of Exhibit D.
---------
"Swing Line Loan Notice" means a notice of a Swing Line Borrowing
----------------------
pursuant to Section 2.05(b), which, if in writing, shall be substantially in the
---------------
form of Exhibit B.
---------
"Swing Line Sublimit" means an amount equal to the lesser of (a)
-------------------
$50,000,000 and (b) the Aggregate Commitments. The commitment of the Swing Line
Lender to make Swing Line Loans pursuant to Section 2.05(a) is part of, and not
---------------
in addition to, the Aggregate Commitments.
"Target Day" means a day on which the Trans-European Automated Real-
----------
Time Gross Settlement Express Transfer payment system is operating.
"Threshold Amount" means $30,000,000.
----------------
"Type" means with respect to a Committed Loan, its character as a Base
----
Rate Committed Loan denominated in Dollars or a Eurocurrency Rate Committed Loan
denominated in any particular Committed Currency, as the case may be.
"Unfunded Pension Liability" means the excess of a Pension Plan's
--------------------------
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"Unreimbursed Amount" has the meaning set forth in Section 2.04(c)(i).
------------------- ------------------
"Unused Commitment" means, with respect to any Lender at any time, (a)
-----------------
such Lender's Commitment at such time, minus (b) the sum of (i) the aggregate
-----
Outstanding Amount of the Committed Loans made by such Lender at such time, plus
----
(ii) such Lender's Pro Rata
16
Credit Agreement
Share of the Outstanding Amount at such time of all (A) Letter of Credit
Obligations, and (B) Swing Line Loans.
"Voting Percentage" means, as to any Lender, (a) at any time when the
-----------------
Aggregate Commitments are in effect, such Lender's Pro Rata Share and (b) at any
time after the termination of the Aggregate Commitments, the percentage (carried
out to the ninth decimal place) which (i) the sum of (A) the Outstanding Amount
of such Lender's Committed Loans plus (B) such Lender's Pro Rata Share of the
----
Outstanding Amount of Letter of Credit Obligations, plus (C) such Lender's Pro
----
Rata Share of the Outstanding Amount of Swing Line Loans, then comprises of (ii)
the Outstanding Amount of all Credit Extensions; provided, however, that if any
-------- -------
Lender has failed to fund any portion of the Committed Loans, participations in
Letter of Credit Obligations, participations in Swing Line Loans required to be
funded by it hereunder, such Lender's Voting Percentage shall be deemed to be
zero, and the respective Pro Rata Shares and Voting Percentages of the other
Lenders shall be recomputed for purposes of this definition and the definition
of "Required Lenders" without regard to such Lender's Commitment or the
outstanding amount of its Committed Loans, Letter of Credit Advances and funded
participations in Swing Line Loans, as the case may be.
1.02 Other Interpretive Provisions.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar
------ ---------
import when used in any Loan Document shall refer to such Loan Document as a
whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to the
Loan Document in which such reference appears.
(iii) The term "including" is by way of example and not limitation.
---------
(iv) The term "documents" includes any and all instruments,
---------
documents, agreements, certificates, notices, reports, financial statements
and other writings, however evidenced, whether in physical or electronic
form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
---- ------------------ --
and "until" each mean "to but excluding;" and the word "through" means "to and
----- ---------------- ------- ------
including."
- ---------
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
16
Credit Agreement
(e) All references to any Person shall also refer to the successors
and assigns of such Person permitted hereunder.
1.03 Accounting Terms.
(a) All accounting terms not specifically or completely defined
herein shall be construed in conformity with, and all financial data required to
be submitted pursuant to this Agreement shall be prepared in conformity with,
GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
- ------
(b) If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
-------- ----
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 References to Agreements and Laws.
Unless otherwise expressly provided herein, (a) references to
agreements (including the Loan Documents) and other contractual instruments
shall be deemed to include all subsequent amendments, restatements, extensions,
supplements and other modifications thereto, but only to the extent that such
amendments, restatements, extensions, supplements and other modifications are
not prohibited by any Loan Document; and (b) references to any Law shall include
all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law.
1.06 Exchange Rates.
On each Calculation Date, the Administrative Agent shall determine the
applicable Exchange Rate as of such Calculation Date used for calculating
relevant Dollar Equivalent amounts. The Exchange Rates so determined shall
become effective on the relevant Calculation Date (a "Reset Date"), shall remain
----------
effective until the next succeeding Reset Date and shall for all purposes of
this agreement (other than provisions expressly requiring the use of a current
Exchange Rate) be the Exchange Rates employed in converting any amounts between
Dollars and Foreign Currencies. Whenever in this Agreement in connection with a
Borrowing,
18
Credit Agreement
conversion or continuation of a Loan or the issuance of a Letter of Credit, an
amount, such as a required minimum or multiple amount, is expressed in Dollars,
but such Borrowing, Loan or Letter of Credit is denominated in a Foreign
Currency, such amount shall be the relevant Foreign Currency equivalent of such
Dollar amount (rounded to the nearest 1,000 units of such Foreign Currency), as
determined by the Administrative Agent.
1.07 Redenomination of Certain Foreign Currencies.
(a) Each obligation of the Borrower to make a payment denominated in
the national currency unit of any member state of the European Economic and
Monetary Union that adopts the Euro as its lawful currency after the date hereof
shall be redenominated into Euro at the time of such adoption (in accordance
with the EEMU Legislation). If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect
of that currency shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Borrowing in the currency of such member state is
--------
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Borrowing, at the end of the then current Interest Period.
(b) Without prejudice and in addition to any method of conversion or
rounding prescribed by any EEMU Legislation and without limiting the liability
of the Borrower for any amount due under this Agreement or any other Loan
Document, all references in this Agreement to minimum amounts (or integral
multiples thereof) denominated in the national currency unit of any member state
of the European Economic and Monetary Union that adopts the Euro as its lawful
currency after the date hereof shall, immediately upon such adoption, be
replaced by references to such reasonably comparable and convenient amounts (or
integral multiples thereof) in the Euro as the Administrative Agent may specify.
(c) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Economic and Monetary Union and any relevant market
conventions or practices relating to the Euro.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans.
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans denominated in a Committed Currency (each such
loan, a "Committed Loan") to the Borrower from time to time on any Business Day
--------------
during the period from the Closing Date to the Maturity Date, in an aggregate
amount (based, in respect of any Committed Loans denominated in a Committed
Currency other than Dollars on the Dollar Equivalent thereof) not to exceed the
amount of such Lender's Unused Commitment; provided, however, that after giving
-------- -------
effect to any Committed Borrowing, (a) the aggregate Outstanding Amount of all
Credit Extensions shall not exceed the Aggregate Commitments and (b) the
aggregate Outstanding
19
Credit Agreement
Amount of all Committed Loans denominated in a Foreign Currency shall not exceed
the Foreign Currency Sublimit. Within the limits of each Lender's Unused
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.01, prepay under Section 2.06 and reborrow under
------------ ------------
this Section 2.01. Committed Loans may be Base Rate Loans or Eurocurrency Rate
------------
Loans, as further provided herein.
2.02 Borrowings, Conversions and Continuations of Committed Loans.
(a) Each Committed Borrowing, each conversion of Committed Loans
denominated in Dollars from one Type to the other, and each continuation of
Committed Loans as the same Type shall be made upon the Borrower's irrevocable
notice to the Administrative Agent, which notice may be given by telephone.
Each such notice must be received by the Administrative Agent not later than (i)
12:00 noon, New York City time, three Business Days prior to the requested date
of any Borrowing or continuation of Eurocurrency Rate Committed Loans, any
conversion of any Base Rate Loans to Eurocurrency Committed Loans denominated in
Dollars or of any conversion of any such Eurocurrency Rate Committed Loans
denominated in Dollars to Base Rate Committed Loans, and (ii) 11:00 a.m., New
York City time on the requested date of any Borrowing of Base Rate Committed
Loans. Each such telephonic notice must be confirmed promptly (and, in any
event, not later than 5:00 p.m. New York City time on the date of delivery
thereof) by delivery to the Administrative Agent of a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Committed Borrowing of, conversion to or continuation of
Eurocurrency Rate Committed Loans shall be in a principal amount (or
substantially equal amount as approved by the Administrative Agent) of
$5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, in the case
of a Committed Borrowing not denominated in Dollars, a Dollar Equivalent of such
amounts determined pursuant to Section 1.06(b)). Each Committed Borrowing of or
---------------
conversion to Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan
Notice (whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Committed Borrowing, a conversion of Committed Loans from one Type
to the other, or a continuation of Committed Loans as the same Type, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the applicable Committed Currency and the
principal amount of the Committed Loans to be borrowed, converted or continued,
(iv) the Dollar Equivalent of the principal amount of the Committed Loans to be
borrowed, converted or continued, (v) the Type of Committed Loans to be borrowed
or to which existing Committed Loans are to be converted and (vi) , if
applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or
if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall, automatically, (A) if
such Committed Loans are denominated in Dollars, be made or continued as, or
converted to, Base Rate Loans and (B) if such Committed Loans are denominated in
a Committed Currency other than Dollars, be redenominated into a Dollar
Equivalent amount of Dollars and be converted into Base Rate Loans. Any such
automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurocurrency
Rate Committed Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurocurrency Rate Committed Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.
20
Credit Agreement
(b) The Administrative Agent shall promptly notify each Lender of (i)
its Pro Rata Share of the applicable Committed Loans specified in each Committed
Loan Notice and (ii) any automatic conversion of Eurocurrency Rate Committed
Loans to Base Rate Loans, in each case, as described in the preceding
subsection. In the case of a Committed Borrowing, each Lender shall make the
amount of its Committed Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent's Office not later than
1:00 p.m., New York City time, on the Business Day specified in the applicable
Committed Loan Notice. Upon satisfaction of the applicable conditions set forth
in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
------------ -------
4.01), the Administrative Agent shall make all funds so received available to
- ----
the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to the Administrative Agent by the
Borrower; provided, however, that if, on the date of any Committed Borrowing
-------- -------
denominated in Dollars there are Swing Line Loans or Letter of Credit Borrowings
outstanding, then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such Letter of Credit Borrowings, second, to the payment
------
in full of any such Swing Line Loans, and third, to the Borrower as provided
-----
above.
(c) Except as otherwise provided herein, a Eurocurrency Rate
Committed Loan may be continued or converted only on the last day of the
Interest Period for such Eurocurrency Rate Committed Loan. During the existence
of a Default or Event of Default, no Committed Loans may be requested as, or
converted to or continued as Eurocurrency Rate Loans without the consent of the
Required Lenders.
(d) The Administrative Agent shall promptly notify the Borrower and
the Lenders of the interest rate applicable to any Eurocurrency Rate Committed
Loan (including the applicable Eurocurrency Rate and the Applicable Rate) upon
determination of such interest rate. The determination of the Eurocurrency Rate
by the Administrative Agent shall be conclusive in the absence of manifest
error. The Administrative Agent shall notify the Borrower and the Lenders of
any change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(e) After giving effect to all Committed Borrowings, all conversions
of Committed Loans from one Type to the other, and all continuations of
Committed Loans as the same Type, there shall not be more than ten Interest
Periods in effect with respect to Committed Loans.
(f) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Committed Loans comprising any Borrowing (or the Dollar
Equivalent thereof) shall be reduced, by payment or prepayment or otherwise, to
less than $5,000,000, such Committed Loans shall, on the last day of the then
existing Interest Period therefor, (A) if such Eurocurrency Rate Committed Loans
are denominated in Dollars, automatically be converted into Base Rate Committed
Loans, and (B) if such Eurocurrency Rate Committed Loans are denominated in any
Committed Currency (other than Dollars), be repaid by the Borrower.
(g) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurocurrency Rate Committed Loan shall automatically, on the
last day of the then
21
Credit Agreement
existing Interest Period therefor, (A) if such Eurocurrency Rate Committed Loans
are denominated in Dollars, be converted into Base Rate Committed Loans, and (B)
if such Eurocurrency Rate Committed Loans are denominated in any Committed
Currency (other than Dollars), be redenominated into a Dollar Equivalent amount
of Dollars and be converted into Base Rate Committed Loans and (ii) the
obligation of the Lenders to make, or to continue or convert Committed Loans
into, Eurocurrency Rate Committed Loans shall be suspended. The Administrative
Agent shall promptly notify each Lender of the aggregate Dollar principal amount
of any such Eurocurrency Rate Committed Loan which is redenominated into Dollars
and such Lender's Pro Rata Share of such Loan.
2.03 Increase in Commitments.
(a) Provided no Default or Event of Default has occurred and is
continuing, upon notice to the Administrative Agent (who shall promptly notify
the Lenders thereof), the Borrower may on a one-time basis, request an increase
in the Aggregate Commitments by an additional amount not to exceed an aggregate
additional $200,000,000. At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period within
which each Lender is requested to respond (which shall in no event be less than
ten Business Days or greater than forty-five Business Days from the date of
delivery of such notice to the Lenders). Each Lender shall notify the
Administrative Agent within such time period whether or not it agrees to
increase its Commitment and, if so, whether by an amount equal to, greater than,
or less than its Pro Rata Share of such requested increase. Any Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment. The Administrative Agent shall notify the Borrower and each
Lender of the Lenders' responses to each request made hereunder. To achieve the
full amount of a requested increase, the Borrower may also invite additional
Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel. If the
Lenders notify the Administrative Agent that they are willing to increase the
amount of their respective Commitments by an aggregate amount that exceeds the
requested increase in the Aggregate Commitment, the requested increase in the
Aggregate Commitment shall be allocated among the Lenders willing to participate
therein in such amounts as are agreed between the Borrower and the
Administrative Agent.
(b) If the Aggregate Commitments are increased in accordance with
this Section, the Administrative Agent and the Borrower shall determine the
effective date (the "Commitment Increase Effective Date") and the final
----------------------------------
allocation of such increase. The Administrative Agent shall promptly notify the
Borrower and the Lenders of the final allocation of such increase and the
Commitment Increase Effective Date. As a condition precedent to such increase,
the Borrower shall deliver to the Administrative Agent a duly executed
certificate of a Responsible Officer dated as of the Commitment Increase
Effective Date (in sufficient copies for each Lender) certifying (i) the
resolutions adopted by the Borrower approving or consenting to such increase,
(ii) through a Compliance Certificate, that the Borrower is in pro forma
compliance with Section 7.06 after giving effect to such increase, (iii) that
------------
immediately before and after giving effect to such increase, the representations
and warranties contained in Article V are true and correct on and as of the
---------
Commitment Increase Effective Date and (iv) that no Default or Event of Default
exists. On the Commitment Increase Effective Date, (A) the Borrower shall
deliver new or amended Committed Loan Notes reflecting the increased
22
Credit Agreement
Commitment of any Lender holding or requesting a Note in exchange for such
Lender's applicable existing Committed Loan Note and (B) the Administrative
Agent shall distribute an amended Schedule 2.01 (which shall be deemed
-------------
incorporated into this Agreement), to reflect any changes therein resulting from
such increase. The Borrower shall prepay any Committed Loans outstanding on the
Commitment Increase Effective Date (and pay any additional amounts required
pursuant to Section 3.05) to the extent necessary to keep the outstanding
------------
Committed Loans ratable with any revised Pro Rata Shares arising from any
nonratable increase in the Commitments under this Section.
(c) This Section shall supersede any provisions in Section 10.01 to
-------------
the contrary.
2.04 Letters of Credit.
(a) The Letter of Credit Commitment.
-------------------------------
(i) Subject to the terms and conditions set forth herein, (A) the
Letter of Credit Issuer agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.04, (1) from time to time on any
Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the
Borrower, and to amend or renew Letters of Credit previously issued by it,
in accordance with subsection (b) below, and (2) to honor drafts under the
Letters of Credit; and (B) the Lenders severally agree to participate in
Letters of Credit issued for the account of the Borrower; provided that the
Letter of Credit Issuer shall not be obligated to make any Letter of Credit
Credit Extension with respect to any Letter of Credit, and no Lender shall
be obligated to participate in, any Letter of Credit if as of the date of
such Letter of Credit Credit Extension, (1) the Outstanding Amount of all
Credit Extensions would exceed the Aggregate Commitments, (2) any Lender's
Pro Rata Share of the undrawn face amount of such Letter of Credit would
exceed such Lender's Unused Commitment, or (3) the Outstanding Amount of
the Letter of Credit Obligations would exceed the Letter of Credit
Sublimit. Within the foregoing limits, and subject to the terms and
conditions hereof, the Borrower's ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed.
(ii) The Letter of Credit Issuer shall be under no obligation to
issue any Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Letter of Credit Issuer from issuing such Letter of
Credit, or any Law applicable to the Letter of Credit Issuer or any
request or directive (whether or not having the force of law) from any
Governmental Authority with jurisdiction over the Letter of Credit
Issuer shall prohibit, or request that the Letter of Credit Issuer
refrain from, the issuance of letters of credit generally or such
Letter of Credit in particular or shall impose upon the Letter of
Credit Issuer with respect to such Letter of Credit any
23
Credit Agreement
restriction, reserve or capital requirement (for which the Letter of
Credit Issuer is not otherwise compensated hereunder) not in effect on
the Closing Date, or shall impose upon the Letter of Credit Issuer any
unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which the Letter of Credit Issuer in good faith deems
material to it;
(B) subject to Section 2.04(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last renewal, unless the Required Lenders have
approved such expiry date;
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one or
more policies of the Letter of Credit Issuer; or
(E) such Letter of Credit is in a face amount less than
$100,000 (or the approximate Dollar Equivalent of such amount), in the
case of a commercial Letter of Credit, or $500,000 (or the approximate
Dollar Equivalent of such amount), in the case of a standby Letter of
Credit, or is to be denominated in a currency other than a Committed
Currency.
(iii) The Letter of Credit Issuer shall be under no obligation to
amend any Letter of Credit if (A) the Letter of Credit Issuer would have no
obligation at such time to issue such Letter of Credit in its amended form
under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit;
----------------------------------------------------------
Auto-Renewal Letters of Credit.
- ------------------------------
(i) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of the Borrower delivered to the Letter of Credit
Issuer (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such Letter of Credit Application must be received
by the Letter of Credit Issuer and the Administrative Agent not later than
11:00 a.m., New York City time, at least two Business Days (or such later
date and time as the Letter of Credit Issuer may agree in a particular
instance in its sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail satisfactory to the Letter of Credit
Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof (which may only be
in a Committed Currency); (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing
24
Credit Agreement
thereunder; and (G) such other matters as the Letter of Credit Issuer may
require. In the case of a request for an amendment of any outstanding
Letter of Credit, such Letter of Credit Application shall specify in form
and detail satisfactory to the Letter of Credit Issuer (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which
shall be a Business Day); (C) the nature of the proposed amendment; and (D)
such other matters as the Letter of Credit Issuer may require.
(ii) Promptly after receipt of any Letter of Credit Application, the
Letter of Credit Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy
of such Letter of Credit Application from the Borrower and, if not, the
Letter of Credit Issuer will provide the Administrative Agent with a copy
thereof. Upon receipt by the Letter of Credit Issuer of confirmation from
the Administrative Agent that the requested issuance or amendment is
permitted in accordance with the terms hereof, then, subject to the terms
and conditions hereof (including Section 4.02), the Letter of Credit Issuer
shall, on the requested date, issue a Letter of Credit for the account of
the Borrower or enter into the applicable amendment, as the case may be, in
each case in accordance with the Letter of Credit Issuer's usual and
customary business practices; provided, that the Letter of Credit Issuer
--------
shall not, in any event, issue a Letter of Credit if any Default or Event
of Default has occurred and is continuing. Immediately upon the issuance
of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Letter of
Credit Issuer a risk participation in such Letter of Credit in an amount
equal to the product of such Lender's Pro Rata Share times the amount of
such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of Credit
Application, the Letter of Credit Issuer may, in it sole and absolute
discretion, agree to issue a Letter of Credit that has automatic renewal
provisions (each, an "Auto-Renewal Letter of Credit"); provided that any
-----------------------------
such Auto-Renewal Letter of Credit must permit the Letter of Credit Issuer
to prevent any such renewal at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving
prior notice to the beneficiary thereof not later than a day (the
"Nonrenewal Notice Date") in each such twelve-month period to be agreed
-----------------------
upon at the time such Letter of Credit is issued. Unless otherwise
directed by the Letter of Credit Issuer, the Borrower shall not be required
to make a specific request to the Letter of Credit Issuer for any such
renewal. Once an Auto-Renewal Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the Letter
of Credit Issuer to permit the renewal of such Letter of Credit at any time
to a date not later than the Letter of Credit Expiration Date; provided,
however, that the Letter of Credit Issuer shall not permit any such renewal
if (A) the Letter of Credit Issuer would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof, or
(B) it has received notice (which may be by telephone or in writing) on or
before the Business Day immediately preceding the Nonrenewal Notice Date
(1) from the Administrative Agent that the Required Lenders have elected
not to permit such renewal or (2) from the Administrative Agent, any Lender
or the Borrower that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied. Notwithstanding anything to the
contrary contained herein, the Letter of Credit Issuer shall have no
obligation to permit the renewal of any Auto-Renewal Letter of Credit at
any time.
25
Credit Agreement
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the Letter of Credit Issuer will also deliver
to the Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
------------------------------------------------------
(i) Upon any drawing under any Letter of Credit, the Letter of
Credit Issuer shall notify the Borrower and the Administrative Agent
thereof. The Borrower shall reimburse the Letter of Credit Issuer through
the Administrative Agent in an amount equal to the amount of such drawing,
together with interest on such amount at the Base Rate for each day in the
period from the date of such drawing to the date of reimbursement by the
Borrower, not later than 5:00 p.m., New York City time, on the date the
Borrower receives notice of such drawing from the Letter of Credit Issuer;
provided, that if the Borrower receives such notice after 1:00 p.m. New
--------
York City time on any Business Day, then such payment shall instead be due,
together with interest thereon, prior to the time specified pursuant to
Section 2.13(a) on the Business Day immediately following the date of such
---------------
notice. If the Borrower fails to so reimburse the Letter of Credit Issuer
by such time, the Administrative Agent shall promptly notify each Lender of
(x) the date of such drawing, (y) the amount of the unreimbursed drawing
(together with any accrued interest thereon), in the case of a drawing
under a Dollar denominated Letter of Credit, or the Dollar Equivalent of
the unreimbursed drawing (together with any accrued interest thereon), in
the case of a drawing under a Foreign Currency denominated Letter of Credit
(in either case, the "Unreimbursed Amount"), and (z) such Lender's Pro Rata
-------------------
Share of the Unreimbursed Amount. On the date of any such notice from the
Administrative Agent in respect of an unreimbursed drawing under a Letter
of Credit denominated in a Foreign Currency, the Borrower's reimbursement
obligation to the Letter of Credit Issuer in respect of such drawing shall
automatically be redenominated into Dollars in the Unreimbursed Amount. In
such event, the Borrower shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the date of such notice in
an amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal amount of Base
------------
Rate Loans, but subject to the amount of the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02 (other
------------
than the delivery of a Committed Loan Notice). Any notice given by the
Letter of Credit Issuer or the Administrative Agent pursuant to this
Section 2.04(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
(ii) Each Lender (including the Lender acting as Letter of Credit
Issuer) shall upon any notice pursuant to Section 2.04(c)(i) make funds
available to the Administrative Agent for the account of the Letter of
Credit Issuer at the Administrative Agent's Office in Dollars in an amount
equal to its Pro Rata Share of the Unreimbursed Amount not later than 1:00
p.m., New York City time, on the Business Day specified in such notice by
the Administrative Agent, whereupon, subject to the provisions of Section
2.04(c)(iii), each Lender that so makes funds available shall be deemed to
have made a Committed Base
26
Credit Agreement
Rate Loan to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the Letter of Credit Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Committed Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other
reason, the Borrower shall be deemed to have incurred from the Letter of
Credit Issuer a Letter of Credit Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced in Dollars, which Letter of
Credit Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each
Lender's payment to the Administrative Agent for the account of the Letter
of Credit Issuer pursuant to Section 2.04(c)(ii) shall be deemed payment in
respect of its participation in such Letter of Credit Borrowing and shall
constitute a Letter of Credit Advance from such Lender in satisfaction of
its participation obligation under this Section 2.04.
(iv) Until each Lender funds its Committed Loan or Letter of Credit
Advance pursuant to this Section 2.04(c) to reimburse the Letter of Credit
Issuer for any amount drawn under any Letter of Credit, interest in respect
of such Lender's Pro Rata Share of such amount shall be solely for the
account of the Letter of Credit Issuer.
(v) Each Lender's obligation to make Committed Loans or Letter of
Credit Advances to reimburse the Letter of Credit Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.04(c), shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against the Letter of Credit Issuer, the
Borrower or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
Committed Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02. Any such reimbursement shall not
relieve or otherwise impair the obligation of the Borrower to reimburse the
Letter of Credit Issuer for the amount of any payment made by the Letter of
Credit Issuer under any Letter of Credit, together with interest as
provided herein.
(vi) If any Lender fails to make available to the Administrative
Agent for the account of the Letter of Credit Issuer any amount required to
be paid by such Lender pursuant to the foregoing provisions of this Section
2.04(c) by the time specified in Section 2.04(c)(ii), the Letter of Credit
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Letter of Credit Issuer at a rate
per annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Letter of Credit Issuer submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
---------------------------
27
Credit Agreement
(i) At any time after the Letter of Credit Issuer has made a
payment under any Letter of Credit and has received from any Lender such
Lender's Letter of Credit Advance in respect of such payment in accordance
with Section 2.04(c), if the Administrative Agent receives for the account
of the Letter of Credit Issuer any payment related to such Letter of Credit
(whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), or any
payment of interest thereon, the Administrative Agent will distribute to
such Lender its Pro Rata Share thereof in the same funds as those received
by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for the
account of the Letter of Credit Issuer pursuant to Section 2.04(c)(i) is
required to be returned, each Lender shall pay to the Administrative Agent
for the account of the Letter of Credit Issuer its Pro Rata Share thereof
on demand of the Administrative Agent, plus interest thereon from the date
of such demand to the date such amount is returned by such Lender, at a
rate per annum equal to the Federal Funds Rate from time to time in effect.
(e) Obligations Absolute. The obligation of the Borrower to
--------------------
reimburse the Letter of Credit Issuer for each drawing under each Letter of
Credit, and to repay each Letter of Credit Borrowing and each drawing under a
Letter of Credit that is refinanced by a Borrowing of Committed Loans, shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating
thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary
or any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Letter of Credit
Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the Letter of Credit Issuer under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the Letter of Credit Issuer under such Letter of Credit to any
Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of such
Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or
28
Credit Agreement
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any
claim of noncompliance with the Borrower's instructions or other irregularity,
the Borrower will immediately notify the Letter of Credit Issuer. The Borrower
shall be conclusively deemed to have waived any such claim against the Letter of
Credit Issuer and its correspondents unless such notice is given as aforesaid.
(f) Role of Letter of Credit Issuer. Each Lender and the Borrower
-------------------------------
agree that, in paying any drawing under a Letter of Credit, the Letter of Credit
Issuer shall not have any responsibility to obtain any document (other than any
sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document. No Agent-Related Person nor any of the respective correspondents,
participants or assignees of the Letter of Credit Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Lenders, as applicable; (ii)
any action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to,
-------- -------
and shall not, preclude the Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. No Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the Letter of Credit Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of
Section 2.04(e); provided, however, that anything in such clauses to the
- --------------- -------- -------
contrary notwithstanding, the Borrower may have a claim against the Letter of
Credit Issuer, and the Letter of Credit Issuer may be liable to the Borrower, to
the extent, but only to the extent, of any direct, as opposed to consequential
or exemplary, damages suffered by the Borrower which the Borrower proves were
caused by the Letter of Credit Issuer's willful misconduct or gross negligence
or the Letter of Credit Issuer's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the Letter of
Credit Issuer may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and the Letter of Credit Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent,
---------------
(i) if the Letter of Credit Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in a Letter of
Credit Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any
Letter of Credit may for any reason remain outstanding and partially or wholly
undrawn, the Borrower shall immediately Cash Collateralize the then Outstanding
29
Credit Agreement
Amount of all Letter of Credit Obligations (in an amount equal to such
Outstanding Amount determined as of the date of such Letter of Credit Borrowing
or the Letter of Credit Expiration Date, as the case may be).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
------------------------------
agreed by the Letter of Credit Issuer and the Borrower when a Letter of Credit
is issued (including any such agreement applicable to an Existing Letter of
Credit), (i) the rules of the "International Standby Practices 1998" published
by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce (the "ICC") at the time of issuance (including the ICC decision
---
published by the Commission on Banking Technique and Practice on April 6, 1998
regarding the European single currency (euro)) shall apply to each commercial
Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
---------------------
Administrative Agent, for the account of each Lender in accordance with its Pro
Rata Share, a Letter of Credit fee for each Letter of Credit equal to the
Applicable Rate times the actual daily maximum amount available to be drawn
-----
under each Dollar denominated Letter of Credit and the Dollar Equivalent of the
actual daily maximum amount available to be drawn under each Foreign Currency
denominated Letter of Credit. Such fee for each Letter of Credit shall be due
and payable in arrears on the last Business Day of each March, June, September
and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, and on the Letter of Credit Expiration Date. If there is
any change in the Applicable Rate during any quarter, the actual daily amount of
each Letter of Credit (or the Dollar Equivalent of such amount) shall be
computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable to
--------------------------------------------------------------
Letter of Credit Issuer. The Borrower shall pay directly to the Letter of
- -----------------------
Credit Issuer for its own account a fronting fee in an amount (i) with respect
to each commercial Letter of Credit, equal to 1/8 of 1% of the amount of such
Letter of Credit, due and payable upon the issuance thereof, and (ii) with
respect to each standby Letter of Credit, equal to 1/8 of 1% per annum on the
daily maximum amount available to be drawn thereunder, due and payable quarterly
in arrears on the last Business Day of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, and on the Letter of Credit Expiration Date. On each such quarterly
payment date, the Letter of Credit Issuer shall notify the Administrative Agent
and each Lender of each outstanding Letter of Credit and the daily maximum
amount available to be drawn thereunder for the quarter then ended. In
addition, the Borrower shall pay directly to the Letter of Credit Issuer for its
own account reasonable and customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the Letter of Credit
Issuer relating to letters of credit as from time to time in effect. Such fees
and charges are due and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of any
------------------------------------------
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
30
Credit Agreement
2.05 Swing Line Loans.
(a) The Swing Line. Subject to the terms and conditions set forth
--------------
herein, the Swing Line Lender agrees to make loans (each such loan, a "Swing
-----
Line Loan") to the Borrower from time to time on any Business Day during the
- ---------
period from the Closing Date to the Maturity Date in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit,
notwithstanding the fact that such Swing Line Loans, when aggregated with the
Outstanding Amount of Committed Loans of the Swing Line Lender in its capacity
as a Lender of Committed Loans, may exceed the amount of such Lender's
Commitment; provided, however, that after giving effect to any Swing Line Loan,
-------- -------
(i) the aggregate Outstanding Amount of all Credit Extensions shall not exceed
the Aggregate Commitments, and (ii) any Lender's Pro Rata Share (in the case of
the Swing Line Lender, in its capacity as a Lender of Committed Loans) of such
Swing Line Loan shall not exceed such Lender's Unused Commitment. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.05, prepay under Section 2.06, and
------------ ------------
reborrow under this Section 2.05; provided, however, that the Swing Line Lender
---------- -------- -------
may terminate or suspend its Commitment to make Swing Line Loans at any time in
its sole discretion upon notice to the Borrower; and provided, further that the
-------- -------
Borrower shall not borrow a Swing Line Loan for the purpose of repaying or
prepaying an outstanding Swing Line Loan. Each Swing Line Loan shall be a Base
Rate Loan and be denominated in Dollars. Immediately upon the making of a Swing
Line Loan, each Lender shall automatically, and without the requirement of
notice to or action by any Person, be deemed to have purchased from the Swing
Line Lender a risk participation in such Swing Line Loan in an amount equal to
the product of such Lender's Pro Rata Share times the amount of such Swing Line
-----
Loan.
(b) Borrowing Procedures. Unless the Swing Line Lender has notified
--------------------
the Borrower that its Commitment to make Swing Line Loans has been terminated or
suspended as provided in Section 2.05(a), each Swing Line Borrowing shall be
---------------
made upon the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m., New York City time, on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and
(ii) the requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by (and, in any case, not later
than 5:00 p.m. New York City time on the requested borrowing date) delivery to
the Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Promptly after receipt by the Swing Line Lender of any telephonic
Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone
or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m., New York City time, on the date of the proposed
Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing
Line Loan as a result of the limitations set forth in the proviso to the first
sentence of Section 2.05(a), or (B) that one or more of the applicable
---------------
conditions specified in Section 4.02 (and if a Swing Line Borrowing is the
------------
initial Credit Extension hereunder, Section 4.01) is not then satisfied, then,
------------
subject to the terms
31
Credit Agreement
and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m., New
York City time, on the borrowing date specified in such Swing Line Loan Notice,
make the amount of its Swing Line Loan available to the Borrower at its office
by crediting the account of the Borrower on the books of the Swing Line Lender
in immediately available funds.
(c) Refinancing of Swing Line Loans.
-------------------------------
(i) The Swing Line Lender, at any time in its sole and absolute
discretion, may request pursuant to a Committed Loan Notice executed in its
own name, on behalf of the Borrower (which hereby irrevocably requests the
Swing Line Lender to so request on its behalf), that each Lender (other
than the Lender which is also the Swing Line Lender) make a Committed Base
Rate Loan in an amount equal to such Lender's Pro Rata Share of the amount
of Swing Line Loans then outstanding. Such request shall be made in
accordance with the requirements of Section 2.02, without regard to the
------------
minimum and multiples specified therein for the principal amount of Base
Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line
------------
Lender shall furnish the Borrower with a copy of the applicable Committed
Loan Notice promptly after delivering such notice to the Administrative
Agent. Each Lender shall make an amount equal to its Pro Rata Share of the
amount specified in such Committed Loan Notice available to the
Administrative Agent in immediately available funds for the account of the
Swing Line Lender at the Administrative Agent's Office not later than 1:00
p.m., New York City time, on the day specified in such Committed Loan
Notice, whereupon, subject to Section 2.05(c)(ii), each Lender that so
-------------------
makes funds available shall be deemed to have made a Base Rate Committed
Loan to the Borrower in such amount. The Administrative Agent shall remit
the funds so received to the Swing Line Lender.
(ii) If for any reason any Committed Borrowing cannot be requested
in accordance with Section 2.05(c)(i) or any Swing Line Loan cannot be
------------------
refinanced by such a Committed Borrowing, the Committed Loan Notice
submitted by the Swing Line Lender shall be deemed to be a request by the
Swing Line Lender that each of the Lenders fund its risk participation in
the relevant Swing Line Loan and each Lender's payment to the
Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.05(c)(i) shall be deemed payment in respect of such
------------------
participation.
(iii) If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this Section
-------
2.05(c) by the time specified in Section 2.05(c)(i), the Swing Line Lender
------- ------------------
shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per
annum equal to the Federal Funds Rate from time to time in effect. A
certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.
32
Credit Agreement
(iv) Each Lender's obligation to make Committed Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this Section
-------
2.05(c) shall be absolute and unconditional and shall not be affected by
-------
any circumstance, including (A) any set-off, counterclaim, recoupment,
defense or other right which such Lender may have against the Swing Line
Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default or Event of Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender's obligation to make
-------- -------
Committed Loans pursuant to this Section 2.05(c) is subject to the
---------------
conditions set forth in Section 4.02. Any such purchase of participations
------------
shall not relieve or otherwise impair the obligation of the Borrower to
repay Swing Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
---------------------------
(i) At any time after any Lender has purchased and funded a
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender's participation was outstanding and funded) in the
same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned by
the Swing Line Lender, each Lender shall pay to the Swing Line Lender its
Pro Rata Share thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned,
at a rate per annum equal to the Federal Funds Rate. The Administrative
Agent will make such demand upon the request of the Swing Line Lender.
(e) Interest for Account of Swing Line Lender. The Swing Line
-----------------------------------------
Lender shall be responsible for invoicing the Borrower for interest on the Swing
Line Loans. Until each Lender funds its Committed Base Rate Loan or
participation pursuant to this Section 2.05 to refinance such Lender's Pro Rata
------------
Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall
be solely for the account of the Swing Line Lender.
(f) Payments Directly to Swing Line Lender. The Borrower shall make
--------------------------------------
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
2.06 Prepayments.
(a) The Borrower may, upon notice to the Administrative Agent, at
any time or from time to time voluntarily prepay Committed Loans in whole or in
part without premium or penalty; provided that (i) such notice must be received
--------
by the Administrative Agent not later than 11:00 a.m., New York City time, (A)
three Business Days prior to any date of prepayment of Eurocurrency Rate
Committed Loans, and (B) on the date of prepayment of Base Rate Committed Loans;
(ii) any prepayment of Eurocurrency Rate Committed Loans shall be in a
33
Credit Agreement
principal amount of, or in the case of any such Committed Loan which is not
denominated in Dollars, a Dollar Equivalent principal amount (or substantially
equal amount as approved by the Administrative Agent) of such Loan equal to,
$5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iii) any
prepayment of Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid. The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of such Lender's Pro Rata
Share of such prepayment. Each prepayment notice given by the Borrower shall be
irrevocable and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of Committed Loans in any
Committed Currency shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05 and shall
------------
be applied first to Base Rate Borrowings (if such prepayment is a prepayment of
Dollars) and, second, to Eurocurrency Rate Borrowings denominated in such
currency. Each such prepayment shall be applied to the Committed Loans of the
Lenders in accordance with their respective Pro Rata Shares.
(b) The Borrower may, upon notice to the Swing Line Lender (with a
copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
--------
that (i) such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m., New York City time, on the date
of the prepayment, and (ii) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such
prepayment. Each such notice given by the Borrower shall be irrevocable, and
the payment amount specified in such notice shall be due and payable on the date
specified therein.
(c) If for any reason the Outstanding Amount of all Credit
Extensions at any time exceeds the Aggregate Commitments then in effect, the
Borrower shall immediately prepay Loans and/or Cash Collateralize the Letter of
Credit Obligations in an aggregate amount equal to such excess.
(d) If for any reason the Outstanding Amount of all Letters of
Credit at any time exceeds the Letter of Credit Sublimit, the Borrower shall
immediately Cash Collateralize Letters of Credit in an aggregate amount equal to
such excess.
(e) If for any reason the Outstanding Amount of Committed Loans
denominated in a Foreign Currency exceeds the Foreign Currency Sublimit, the
Borrower shall immediately repay such Committed Loans in an aggregate amount
equal to such excess.
2.07 Reduction or Termination of Commitments.
The Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate Commitments, or permanently reduce the Aggregate Commitments to an
amount not less than the then Outstanding Amount of all Credit Extensions;
provided that (i) any such notice shall be received by the Administrative Agent
- --------
not later than 11:00 a.m., three Business Days prior to the date of termination
or reduction, and (ii) any such partial reduction shall be in an aggregate
amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof.
The Administrative Agent shall promptly notify the Lenders of any such notice of
reduction or
34
Credit Agreement
termination of the Aggregate Commitments. Once reduced in accordance with this
Section, the Aggregate Commitments may not be increased, except as specifically
provided in Section 2.03. Any reduction of the Aggregate Commitments shall be
------------
applied to the Commitment of each Lender according to its Pro Rata Share. All
facility fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.08 Repayment of Loans.
(a) The Borrower shall repay to the Administrative Agent, for the
account of the Lenders, on the Maturity Date the aggregate principal amount of
Committed Loans outstanding on such date.
(b) The Borrower shall repay to the Administrative Agent, for the
account of the Swing Line Lender, each Swing Line Loan on the earliest to occur
of (i) the date five Business Days after such Loan is made, (ii) the date of any
request pursuant to Section 2.05 (c)(i) and (iii) the Maturity Date.
-------------------
(c) The Borrower shall repay to the Administrative Agent, for the
account of the Lenders, each Loan which is the subject of a notice of prepayment
pursuant to Section 2.06 as and when required by such Section.
------------
2.09 Interest.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurocurrency Rate Committed Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurocurrency Rate for such Interest Period plus the Applicable Rate; (ii)
----
each Base Rate Committed Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate; and (iii) each Swing Line Loan shall bear interest on the
outstanding principal amount thereof from the applicable borrowing date at a
rate per annum equal to the Base Rate.
(b) While any Event of Default exists or after acceleration, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Law. Accrued and
unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.10 Fees.
In addition to certain fees described in subsections (i) and (j) of
Section 2.04:
- ------------
35
Credit Agreement
(a) Facility Fee. The Borrower shall pay to the Administrative
------------
Agent for the account of each Lender in accordance with its Pro Rata Share, a
facility fee equal to the Applicable Rate times the actual daily amount of the
-----
Aggregate Commitments, regardless of usage. The facility fee shall accrue at all
times from the Closing Date until the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. The facility fee shall accrue at all times, including at any time during
which one or more of the conditions in Article IV is not met.
----------
(b) Utilization Fee. The Borrower shall pay to the Administrative
---------------
Agent for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee equal to the percentage specified therefor under the definition
for the term "Applicable Rate" times the actual daily aggregate Outstanding
-----
Amount of Loans and Letter of Credit Obligations on each day that such aggregate
Outstanding Amount exceeds 50% of the Aggregate Commitments. The utilization
fee shall be due and payable quarterly in arrears on the last Business Day of
each March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Maturity Date. The utilization fee
shall be calculated quarterly in arrears.
(c) Arrangement and Agency Fees. The Borrower shall pay an
---------------------------
arrangement fee to the Arranger for the Arranger's own account, and shall pay an
agency fee to the Administrative Agent for the Administrative Agent's own
account, in the amounts and at the times specified in the letter agreement,
dated May 16, 2001 (the "Fee Letter"), between the Borrower, the Arranger and
----------
the Administrative Agent. Such fees shall be fully earned when paid and shall
be nonrefundable for any reason whatsoever.
2.11 Computation of Interest and Fees.
Interest on Base Rate Loans and Committed Loans denominated in
Sterling shall be calculated on the basis of a year of 365 or 366 days, as the
case may be, and the actual number of days elapsed. Computation of all other
types of interest and all fees shall be calculated on the basis of a year of 360
days and the actual number of days elapsed, which results in a higher yield to
the payee thereof than a method based on a year of 365 or 366 days. Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is repaid, provided that any Loan that is repaid on the same day on
--------
which it is made shall bear interest for one day.
2.12 Evidence of Debt.
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrower and the interest and payments thereon. Any failure
to so
36
Credit Agreement
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to
the Loans or Letter of Credit Obligations. In the event of any conflict between
the accounts and records maintained by any Lender and the accounts and records
of the Administrative Agent in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest error. Upon
the request of any Lender made through the Administrative Agent, such Lender's
Loans may be evidenced by a Committed Loan Note and/or a Swing Line Note, as
applicable, in addition to such accounts or records. Each Lender may attach
schedules to its Note(s) and endorse thereon the date, Type (if applicable),
amount, currency and maturity of the applicable Loans and payments with respect
thereto.
(b) In addition to the accounts and records referred to in
subsection (a), each Lender and the Administrative Agent shall maintain in
accordance with its usual practice accounts or records evidencing the purchases
and sales by such Lender of participations in Letters of Credit and Swing Line
Loans. In the event of any conflict between the accounts and records maintained
by the Administrative Agent and the accounts and records of any Lender in
respect of such matters, the accounts and records of the Administrative Agent
shall control.
2.13 Payments Generally.
(a) (i) All payments to be made by the Borrower shall be made in
immediately available funds without condition or deduction for any counterclaim,
defense, recoupment or setoff as herein provided.
(ii) Except as otherwise expressly provided herein, all payments by
the Borrower hereunder shall be made to the Administrative Agent, for the
account of the respective Lenders to which such payment is owed, at the
Administrative Agent's Office in the applicable Committed Currency not
later than 1:00 p.m., New York City time, on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Pro
Rata Share (or other applicable share as provided herein) of such payment
in like funds as received by wire transfer to such Lender's Lending Office.
All payments received by the Administrative Agent after 1:00 p.m., New York
City time, shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue.
(iii) Unless converted to Dollars pursuant to the express terms of
this Agreement, all payments in respect of the principal of or interest on
Loans denominated in a Foreign Currency, and all reimbursement of amounts
drawn under Letters of Credit denominated in a Foreign Currency, shall be
made by the Borrower in such Foreign Currency.
(b) Subject to the definition of "Interest Period," if any payment
to be made by the Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of
time shall be reflected in computing interest or fees, as the case may be.
37
Credit Agreement
(c) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, Letter of
Credit Borrowings, interest and fees then due hereunder, such funds shall be
applied (i) first, toward costs and expenses (including Attorney Costs and
-----
amounts payable under Article III) incurred by the Administrative Agent and each
-----------
Lender, (ii) second, toward repayment of interest and fees then due hereunder,
------
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (iii) third, toward repayment of
-----
principal and Letter of Credit Borrowings then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal and Letter
of Credit Borrowings then due to such parties.
(d) Unless the Borrower or any Lender has notified the
Administrative Agent prior to the date any payment is required to be made by it
to the Administrative Agent hereunder that the Borrower or such Lender, as the
case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such
payment and may (but shall not be so required to), in reliance thereon, make
available a corresponding amount to the Person entitled thereto. If and to the
extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately
available funds, together with interest thereon in respect of each day from
and including the date such amount was made available by the Administrative
Agent to such Lender to the date such amount is repaid to the
Administrative Agent in immediately available funds, at (A) the Federal
Funds Rate (in the case of a Borrowing denominated in Dollars) or (B) such
other rate as shall customarily be employed for the settlement of errors
between banks (in the case of Borrowings denominated in a Foreign
Currency), from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Administrative Agent to
the Borrower to the date such amount is recovered by the Administrative
Agent (the "Compensation Period") at a rate per annum equal to (A) the
-------------------
Federal Funds Rate (in the case of a Borrowing denominated in Dollars) or
(B) such other rate as shall customarily be employed for the settlement of
errors between banks (in the case of Borrowings denominated in a Foreign
Currency), from time to time in effect. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Committed Loan included in the applicable Borrowing. If such Lender does
not pay such amount forthwith upon the Administrative Agent's demand
therefor, the Administrative Agent may make a demand therefor upon the
Borrower, and the Borrower shall pay such amount to the Administrative
Agent, together with interest thereon for the Compensation Period at a rate
per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
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Credit Agreement
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
(e) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing provisions
of this Article II, and the conditions to the applicable Credit Extension set
----------
forth in Article IV are not satisfied or waived in accordance with the terms
----------
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans
and to fund participations in Letters of Credit and Swing Line Loans are several
and not joint. The failure of any Lender to make any Committed Loan or to fund
any such participation on any date required hereunder shall not relieve any
other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
2.14 Sharing of Payments.
If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Committed Loans made by it, or the participations
in Letter of Credit Obligations or in Swing Line Loans held by it, any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Committed Loans made by them and/or such subparticipations in the
participations in Letter of Credit Obligations or Swing Line Loans held by them,
as the case may be, as shall be necessary to cause such purchasing Lender to
share the excess payment in respect of such Committed Loans or such
participations, as the case may be, pro rata with each of them; provided,
--------
however, that if all or any portion of such excess payment is thereafter
- -------
recovered from the purchasing Lender, such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09 with respect to
-------------
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The Administrative Agent will
keep records (which shall be conclusive and binding in the absence of manifest
error) of participations purchased under this Section and will in each case
notify the Lenders following any such purchases or repayments. Each Lender that
purchases a participation pursuant to this Section shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other communications under this
39
Credit Agreement
Agreement with respect to the portion of the Obligations purchased to the same
extent as though the purchasing Lender were the original owner of the
Obligations purchased.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Subject to Section 10.15 (b), any and all payments by the
-----------------
Borrower to or for the account of the Administrative Agent or any Lender under
any Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of the Administrative Agent and each
---------
Lender, taxes on or measured by its net income imposed on it, and franchise
taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any
political subdivision thereof) under the Laws of which the Administrative Agent
or such Lender, as the case may be, is organized or maintains a Lending Office
(all such non-excluded taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by any Laws to deduct
-----
any Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section), the Administrative
Agent and such Lender 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 taxation
authority or other authority in accordance with applicable Laws, and (iv) within
30 days after the date of such payment, the Borrower shall furnish to the
Administrative Agent (which shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made by the Borrower
under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan Document
(hereinafter referred to as "Other Taxes").
-----------
(c) Subject to Section 10.15 (b), if the Borrower shall be required
-----------------
to deduct or pay any Taxes or Other Taxes from or in respect of any sum payable
under any Loan Document to the Administrative Agent or any Lender, the Borrower
shall also pay to the Administrative Agent (for the account of such Lender) or
to such Lender, at the time interest is paid, such additional amount that such
Lender specifies is necessary to preserve the after-tax yield (after factoring
in all taxes, including taxes imposed on or measured by net income) such Lender
would have received if such Taxes or Other Taxes had not been imposed.
(d) Subject to Section 10.15 (b), the Borrower agrees to indemnify
-----------------
the Administrative Agent and each Lender for (i) the full amount of Taxes and
Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by the Administrative
Agent or such Lender, (ii) amounts payable under
40
Credit Agreement
Section 3.01(c) and (iii) any liability (including penalties, interest and
- ---------------
expenses) arising therefrom or with respect thereto, in each case whether or not
such Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under this subsection (d) shall be made
within 30 days after the date the Lender or the Administrative Agent makes a
demand therefor.
3.02 Illegality.
If any Lender determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for any Lender or
its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans,
or to determine or charge interest rates based upon the Eurocurrency Rate, then,
on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans
or to convert Base Rate Committed Loans to Eurocurrency Rate Committed Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), either (a) prepay or (b)
convert all Eurocurrency Rate Loans of such Lender to Base Rate Loans (which
demand, in the case of any such Eurocurrency Rate Loans which are denominated in
a Foreign Currency, be automatically effective to first convert such Loans to
loans denominated in Dollar's in a principal amount equal to the Dollar
Equivalent of such Foreign Currency Loans) of such Lender, either on the last
day of the Interest Period thereof, if such Lender may lawfully continue to
maintain such Eurocurrency Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon
any such prepayment or conversion, the Borrower shall also pay accrued interest
on the amount so prepaid or converted. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such notice
and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 Inability to Determine Rates.
If the Administrative Agent (or the Required Lenders through the
Administrative Agent) determines in connection with any request for a
Eurocurrency Rate Loan or a conversion to or continuation thereof that (a)
deposits in the applicable currency are not being offered to banks in the London
interbank Eurocurrency market for the applicable amount and Interest Period of
such Eurocurrency Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurocurrency Rate for such Eurocurrency Rate Loan or (c) the
Eurocurrency Rate for such Eurocurrency Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Eurocurrency Rate Loan, the
Administrative Agent will promptly notify the Borrower and, if applicable, all
the Lenders. Thereafter, the obligation of the Lenders to make or maintain such
Eurocurrency Rate Loans shall be suspended until the Administrative Agent
revokes such notice. Upon receipt of such a notice, the Borrower may revoke any
pending request for a Borrowing, conversion or continuation of Eurocurrency Rate
Loans or, failing that, in the case of any pending request for a Borrowing,
conversion or continuation of Eurocurrency Committed Loans, will be deemed to
have converted such request into a request for a Committed Borrowing in Dollars
of Base Rate Loans in the amount specified therein.
41
Credit Agreement
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on
Eurocurrency Rate Loans.
(a) If any Lender determines that as a result of the introduction of
or any change in or in the interpretation by any Governmental Authority of any
Law, or such Lender's compliance therewith, there shall be any increase in the
cost to such Lender of agreeing to make or making, funding, maintaining or
participating in any Loans or (as the case may be) issuing or participating in
Letters of Credit, or a reduction in the amount received or receivable by such
Lender in connection with any of the foregoing (excluding for purposes of this
subsection (a) any such increased costs or reduction in amount resulting from
(i) Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii) changes
------------
in the basis of taxation of overall net income or overall gross income by the
United States or any foreign jurisdiction or any political subdivision of either
thereof under the Laws of which such Lender is organized or has its Lending
Office, and (iii) reserve requirements contemplated by Section 3.04(c)), then
--------------
from time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender
shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits or other applicable
reserves, additional interest on the unpaid principal amount of each
Eurocurrency Rate Loan equal to the actual costs of such reserves allocated to
such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date
on which interest is payable on such Loan, provided the Borrower shall have
--------
received at least 15 days' prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 15 days from receipt of such notice.
3.05 Funding Losses.
Upon demand of any Lender (with a copy to the Administrative Agent)
from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any continuation, conversion, payment or prepayment of any Loan
(other than a Base Rate Loan) on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
42
Credit Agreement
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
(other than a Base Rate Loan) on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurocurrency Rate Loan on a day other than
the last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.16; or
-------------
(d) any redenomination of a Eurocurrency Rate Committed Loan
denominated in a Foreign Currency to a Committed Loan denominated in Dollars
pursuant to Section 2.02(g) by reason of any difference between the applicable
---------------
Exchange Rate used to effect such redenomination hereunder and the actual
exchange rate used by such Lender to effect such redenomination on its books at
or about the time it receives notice of such redenomination hereunder;
including, in each case, any loss of anticipated profits and any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained. The Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing. For purposes of
calculating amounts payable by the Borrower to the Lenders under this Section
-------
3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan
- ----
made by it at the Eurocurrency Rate for such Loan by a matching deposit or other
borrowing in the London interbank Eurocurrency market for a comparable amount
and for a comparable period, whether or not such Eurocurrency Rate Loan was in
fact so funded.
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the additional amount or
-----------
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, the Administrative Agent or such
Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section
-------
3.01 or 3.04, the Borrower may remove or replace such Lender in accordance with
- ---- ----
Section 10.16.
- -------------
3.07 Survival. All of the Borrower's obligations under this Article
-------
III shall survive termination of the Aggregate Commitments and repayment of all
- ---
other Obligations.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension.
The obligation of each Lender to make its intial Credit Extension
hereunder shall become effective on the date on which the following conditions
precedent have been satisfied:
43
Credit Agreement
(a) Unless waived by all the Lenders, the Administrative Agent's
receipt of the following, each of which shall be originals or facsimiles
(followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the Borrower, each dated the Closing Date
(or, in the case of certificates of governmental officials, a recent date before
the Closing Date) and each in form and substance satisfactory to the
Administrative Agent and its legal counsel:
(i) duly executed counterparts of this Agreement, sufficient in
number for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) Committed Loan Notes duly executed by the Borrower in favor of
each Lender requesting such a Note, each in a principal amount equal to
such Lender's Commitment;
(iii) a Swing Line Note duly executed by the Borrower in favor of the
Swing Line Lender (if it requests such a Note) in the principal amount of
the Swing Line Sublimit;
(iv) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the
Borrower as the Administrative Agent may require to establish the
identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer in connection
with this Agreement and the other Loan Documents to which the Borrower is a
party;
(v) such evidence as the Administrative Agent may reasonably
require to verify that the Borrower is duly organized or formed, validly
existing, in good standing and qualified to engage in business in each
jurisdiction in which it is required to be qualified to engage in business,
including certified copies of the Borrower's Organization Documents,
certificates of good standing and/or qualification to engage in business
and tax clearance certificates;
(vi) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
---------------- ---
have been satisfied (B) that there has been no event or circumstance since
the date of the Audited Financial Statements which has or could be
reasonably expected to have a Material Adverse Effect; and (C) the current
Debt Ratings;
(vii) an opinion of counsel to the Borrower substantially in the form
of Exhibit G;
(viii) such evidence as the Administrative Agent may reasonably
require to verify that the commitments under the Borrower's existing credit
agreement dated as of September 7, 1990, as amended, have been terminated;
and
(ix) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the Letter of Credit Issuer, the
Swing Line Lender or the Required Lenders reasonably may require.
44
Credit Agreement
(b) Any fees required to be paid on or before the Closing Date shall
have been paid, including all Attorney Costs of the Administrative Agent to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute its reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude a final settling of accounts between
the Borrower and the Administrative Agent).
4.02 Conditions to all Credit Extensions.
The obligation of each Lender to honor any Request for Credit
Extension (other than a request for the conversion of Loans to another Type or a
continuation of Loans as the same Type) is subject to the following conditions
precedent:
(a) the representations and warranties of the Borrower contained in
Article V, or which are contained in any document furnished at any time under or
- ---------
in connection herewith, shall be true and correct on and as of the date of such
Credit Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date;
(b) no Default or Event of Default shall exist, or would result from
such proposed Credit Extension;
(c) the Administrative Agent and, if applicable, the Letter of
Credit Issuer or the Swing Line Lender shall have received a Request for Credit
Extension in accordance with the requirements hereof; and
(d) the Administrative Agent shall have received, in form and
substance satisfactory to it, such other assurances, certificates, documents or
consents related to the foregoing as the Administrative Agent or the Required
Lenders reasonably may require.
Each Request for Credit Extension (other than a request for the
conversion of Loans to another Type or a continuation of Loans as the same Type)
submitted by the Borrower shall be deemed to be a representation and warranty
that the conditions specified in Sections 4.02(a) and (b) have been satisfied on
---------------- ---
and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and
the Lenders that:
5.01 Existence, Qualification and Power; Compliance with Laws.
The Borrower (a) is a corporation duly organized, validly existing and
in good standing under the Laws of the jurisdiction of its incorporation, (b)
has all requisite power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under the Loan Documents,
(c) is duly qualified and is licensed and in good standing under the Laws of
each
45
Credit Agreement
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws, except in each case referred to in clause (c) or this
clause (d), to the extent that failure to do so could not reasonably be expected
to have a Material Adverse Effect.
5.02 Authorization; No Contravention.
The execution, delivery and performance by the Borrower of each Loan
Document to which the Borrower is a party, have been duly authorized by all
necessary corporate, shareholder or other organizational action, and do not and
will not (a) contravene the terms of any of the Borrower's Organization
Documents; (b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any Contractual Obligation contemplating payments in
excess of the Threshold Amount to, or to be due from, the Borrower and its
Subsidiaries, or any order, injunction, writ or decree of any Governmental
Authority to which the Borrower or its property is subject; or (c) violate any
Law.
5.03 Governmental and Other Authorizations.
No approval, consent, exemption, authorization, or other action by, or
notice to, or filing with, any Governmental Authority or any other Person is
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, the Borrower of this Agreement or any other Loan
Document, other than any thereof as have been obtained, taken or made on or
prior to the Closing Date and which remain in full force and effect.
5.04 Binding Effect.
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by the Borrower. This
Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms.
5.05 Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its consolidated Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness.
(b) The unaudited consolidated financial statements of the Borrower
and its Subsidiaries dated March 31, 2001, and the related consolidated
statements of income or operations, shareholders' equity and cash flows for the
fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein, and subject to ordinary, good faith year end audit
46
Credit Agreement
adjustments; (ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments and Indebtedness.
(c) As of the Closing Date, since the date of the Audited Financial
Statements, there has been no event or circumstance that has had or could
reasonably be expected to have a Material Adverse Effect.
5.06 Litigation.
There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of the Borrower after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their properties or revenues (a) that purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby, or (b) except as set forth on Schedule 5.06, for which
there is (based on facts and circumstances known to the Borrower after due
inquiry on any date of determination) a reasonable likelihood of an adverse
determination, and which, if adversely determined, could reasonably be expected
to have a Material Adverse Effect.
5.07 No Default.
Neither the Borrower nor any Subsidiary is in default under or with
respect to any Contractual Obligation that could be reasonably expected to have
a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing or would result from the consummation of the transactions
contemplated by this Agreement or any other Loan Document.
5.08 ERISA Compliance.
(a) The Borrower and each ERISA Affiliate have made all required
contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could reasonably be expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event likely to result in material liability for the
Borrower has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability in any material amount; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any material liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
47
Credit Agreement
to incur, any material liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such liability)
under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction
that could reasonably be expected to be subject to Sections 4069 or 4212(c) of
ERISA.
5.09 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act.
(a) The Borrower is not engaged nor will the Borrower engage,
principally or as one of its important activities, in the business of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the FRB),
or extending credit for the purpose of purchasing or carrying margin stock.
(b) None of the Borrower, any Person controlling the Borrower, or any
Subsidiary of the Borrower (i) 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, or (ii) is or is required to be registered
as an "investment company" under the Investment Company Act of 1940.
5.10 Disclosure.
No statement, information, report, representation, or warranty made by
the Borrower in any Loan Document or furnished to the Administrative Agent or
any Lender by or on behalf of the Borrower in connection with any Loan Document
contains any untrue statement of a material fact or omits any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall, and shall (except in the case of
the covenants set forth in Sections 6.01, 6.02 and 6.11) cause each Subsidiary
------------- ---- ----
to:
6.01 Financial Statements.
Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 100 days after the
end of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail, audited and
accompanied by a report and opinion of Arthur Andersen LLP or another firm of
independent certified public
48
Credit Agreement
accountants of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
GAAP and shall not be subject to any qualifications or exceptions which (i) is
of a "going concern" or similar nature, (ii) relates to the limited scope of the
audit, or (iii) relates to the treatment or classification of any items in such
report and which, as a condition to its removal, would require an adjustment to
such item the effect of which would cause there to exist a Default or Event of
Default; and
(b) as soon as available, but in any event within 50 days after the
end of each of the first three fiscal quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders' equity and cash flows for such fiscal
quarter and for the portion of the Borrower's fiscal year then ended, setting
forth in each case in comparative form the figures for the corresponding fiscal
quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of the Borrower as fairly presenting the financial condition, results of
operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.
6.02 Certificates; Other Information.
Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
---------------
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default or, if any such Default or Event of Default shall
exist, stating the nature and status of such event;
(b) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), a duly completed Compliance Certificate
---------------- ---
signed by a Responsible Officer of the Borrower;
(c) promptly after requested by the Administrative Agent or any
Lender, copies of any final management letter submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower by
independent accountants in connection with the accounts or books of the Borrower
or any Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Borrower, and copies of all annual, regular, periodic
and special reports and registration statements which the Borrower may file or
be required to file with the Securities and Exchange Commission under Section 13
or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to
be delivered to the Administrative Agent pursuant hereto; and
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
reasonably request.
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Credit Agreement
6.03 Notices.
Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or could reasonably be expected
to result in a Material Adverse Effect, including (i) breach or non-performance
of, or any default under, a material Contractual Obligation of the Borrower or
any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Laws relating to environmental, health, safety and
land use matters applicable to any property owned or leased by the Borrower or
any Subsidiary, to the extent such matters in clauses (i), (ii) or (iii) could
reasonably be expected to result in a Material Adverse Effect;
(c) of any litigation, investigation or proceeding affecting the
Borrower in which the amount involved exceeds the Threshold Amount, or in which
injunctive relief or similar relief is sought, which relief, if granted, could
reasonably be expected to have a Material Adverse Effect;
(d) of the occurrence of any ERISA Event which may result in
material liability for the Borrower or any of its Subsidiaries;
(e) of any material change in accounting policies or financial
reporting practices by the Borrower; and
(f) of any announcement by Moody's or S&P of any change or possible
change in a Debt Rating.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section
-------
6.03(a) shall describe with particularity any and all provisions of this
- -------
Agreement or other Loan Document that have been breached.
6.04 Payment of Obligations.
Pay and discharge, and cause its Subsidiaries to make funds available
to it in amounts sufficient to pay and discharge, as the same shall become due
and payable in the ordinary course of business, all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary;
(b) all material lawful claims which, if unpaid, would by law become a Lien upon
its property; and (c) all material Indebtedness, as and when due and payable,
but subject to any subordination provisions contained in any instrument or
agreement evidencing such Indebtedness.
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Credit Agreement
6.05 Preservation of Existence, Etc.
Preserve, renew and maintain in full force and effect its legal
existence and good standing (or equivalent status) under the Laws of the
jurisdiction of its organization; take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in
the normal conduct of its business, except in a transaction permitted by Section
-------
7.02; and preserve or renew all of its registered patents, trademarks, trade
- -----
names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.
6.06 Maintenance of Properties.
(a) Maintain, preserve and protect all of its properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (b) make
all necessary repairs thereto and renewals and replacements thereof except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
6.07 Maintenance of Insurance.
Maintain with financially sound and reputable insurance companies not
Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by
Persons engaged in the same or similar businesses, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons.
6.08 Compliance with Laws.
Comply in all material respects with the requirements of all Laws
applicable to it or to its business or property, except in such instances in
which (i) such requirement of Law is being contested in good faith or a bona
fide dispute exists with respect thereto; or (ii) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.
6.09 Books and Records.
Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be.
6.10 Inspection Rights.
Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its properties,
to examine its corporate, financial and operating records, and make abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors,
officers, and independent public accountants, all at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, that when an Event
-------- -------
of Default exists the
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Credit Agreement
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Borrower at any time during normal business hours and without advance notice.
6.11 Compliance with ERISA.
Do, and cause each of its ERISA Affiliates to do, each of the
following: (a) maintain each Plan in compliance in all material respects with
the applicable provisions of ERISA, the Code and other Federal or state law; (b)
cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code except where the failure to comply with this Section
6.11 could not reasonably be expected to have a Material Adverse Effect.
6.12 Use of Proceeds.
Use the proceeds of the Credit Extensions for working capital and
other general corporate purposes (including acquisitions) not in contravention
of any Law or of any Loan Document.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 Liens.
Create, incur, assume or suffer to exist, any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, other
than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on Schedule 7.01;
-------------
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings, if adequate reserves with respect thereto
are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings, if appropriate reserves with
respect thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;
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Credit Agreement
(f) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business (including deposits to secure letters of credit
issued to secure any such obligation);
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money in an aggregate
amount not in excess of the Threshold Amount (except to the extent covered by
independent third-party insurance as to which the insurer has acknowledged in
writing its obligation to cover), unless any such judgment remains undischarged
for a period of more than 30 consecutive days during which execution is not
effectively stayed;
(i) any interest or title of a lessor under any operating lease
entered into by the Borrower or any of its Subsidiaries in the ordinary course
of its business and covering only the assets so leased;
(j) licenses, operating leases or subleases permitted hereunder
granted to other Persons in the ordinary course of business not interfering in
any material respect with the business of the Borrower or any of its
Subsidiaries;
(k) Liens arising from precautionary U.C.C. financing statement
filings with respect to operating leases or consignment arrangements entered
into by the Borrower or any of its Subsidiaries in the ordinary course of
business;
(l) Liens in favor of banking institutions arising by operation of law
encumbering deposits (including the right of set-off)held by such banking
institutions incurred in the ordinary course of business and that are within the
general parameters customary in the banking industry;
(m) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Borrower or any Subsidiary of the Borrower
or becomes a Subsidiary of the Borrower; provided that such Liens were not
--------
created in contemplation of such merger, consolidation or acquisition and do not
extend to any assets other than those of the Person so merged into or
consolidated with the Borrower or such Subsidiary or acquired by the Borrower or
such Subsidiary;
(n) other Liens securing Indebtedness in an aggregate outstanding
principal amount on any date not to exceed 10% of Net Tangible Assets of the
Borrower and its Subsidiaries as of the most recently completed fiscal quarter
of the Borrower prior to such date, and
(o) the replacement, extension or renewal of any Lien permitted by
clause (b) or (m) above upon or in the same property theretofore subject thereto
- -----------------
or the replacement,
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Credit Agreement
extension or renewal (without increase in the amount or change in any direct or
contingent obligor) of the Indebtedness secured thereby.
7.02 Fundamental Changes.
Merge, consolidate with or into, or Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except that, so long as no Default or Event of Default exists or would result
therefrom:
(a) the Borrower may merge or consolidate with or into another
Person if either (i) the Borrower is the surviving Person or (ii) the Person
formed by such consolidation or into which the Borrower is merged (any such
Person, the "Successor") shall be organized and existing under the laws of the
---------
United States or any state thereof or the District of Columbia and shall
expressly assume, in a writing executed and delivered to the Administrative
Agent for delivery to each Lender, in form reasonably satisfactory to the
Administrative Agent (which writing shall include, without limitation, a
certification as to pro forma compliance with Section 7.06), the due and
------------
punctual payment of the principal of and interest on the Loans and the
performance of the other Obligations under this Agreement and the other Loan
Documents on the part of the Borrower to be performed or observed, as fully as
if such Successor were originally named as Borrower in this Agreement;
(b) any Subsidiary may merge with (or dissolve into) (i) the
Borrower, provided that the Borrower shall be the continuing or surviving
--------
Person, or (ii) any one or more Subsidiaries; and
(c) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise), (i) to the Borrower, (ii) to
another Subsidiary or (iii) to another Person; provided, that no Subsidiary may
--------
Dispose of all or substantially all of its assets to another Person (other than
the Borrower or another Subsidiary) in a transaction or series of related
transactions in which all or substantially all of the assets of all material
Subsidiaries of the Borrower (whether now owned or hereafter acquired) are
Disposed of.
7.03 Restrictive Agreements.
Enter into any agreement prohibiting or limiting the ability of any
Subsidiary of the Borrower to make payments, directly or indirectly, to the
Borrower by way of dividends, advances, repayments of loans or advances,
reimbursement of intercompany expenses or accruals or other returns on
investment, or any other agreement or arrangement which restricts the ability of
any such Subsidiary to make any payment, directly or indirectly, to the
Borrower, except for restrictions imposed in connection with an agreement which
has been entered into for the Disposition of a Subsidiary or its assets
otherwise permitted by Section 7.02.
------------
7.04 Transactions with Affiliates.
Enter into any transaction of any kind with any Affiliate of the
Borrower (other than a Subsidiary), other than (i) employment arrangements in
the ordinary cause of business and (ii)arm's-length transactions with Affiliates
that are otherwise permitted hereunder.
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Credit Agreement
7.05 Use of Proceeds.
Use the proceeds of any Credit Extension, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or
carry margin stock (within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.
7.06 Leverage.
Permit the Leverage Ratio as of the end of any fiscal quarter of the
Borrower to be greater than 0.575:1.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default.
Any of the following shall constitute an Event of Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as required
-----------
to be paid herein, any amount of principal of any Loan, or any Letter of Credit
Obligation, or (ii) within three days after the same becomes due, any interest
on any Loan or on any Letter of Credit Obligation, or any facility, utilization
or other fee due hereunder, or (iii) within five days after the same becomes
due, any other amount payable hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe
------------------
any term, covenant or agreement contained in any of Section 6.03(a), 6.05 or
--------------- ----
6.12 or Article VII; or
- ---- -----------
(c) Other Defaults. The Borrower fails to perform or observe any
--------------
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after any Lender shall have given written notice
thereof to the Borrower (through the Administrative Agent) or the Borrower shall
have otherwise become aware of such default; or
(d) Representations and Warranties. Any representation or warranty
------------------------------
made or deemed made by the Borrower herein, in any other Loan Document, or in
any document delivered in connection herewith or therewith proves to have been
incorrect in any material respect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to
-------------
make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise but after giving effect to any applicable
grace periods) in respect of any Indebtedness or Guaranty Obligation (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to observe or
55
Credit Agreement
perform any other agreement or condition relating to any such Indebtedness or
Guaranty Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event occurs, the effect of which
default or other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guaranty Obligation (or
a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased or redeemed
(automatically or otherwise) prior to its stated maturity, or such Guaranty
Obligation to become payable or cash collateral in respect thereof to be
demanded; or (ii) there occurs under any Swap Contract an Early Termination Date
(as defined in such Swap Contract) resulting from (A) any event of default under
such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting
Party (as defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which the Borrower or any Subsidiary is
an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Borrower or such Subsidiary as a result thereof is greater
than the Threshold Amount; or
(f) Insolvency Proceedings, Etc. The Borrower or any of its
----------------------------
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 45 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any part of its
property is instituted without the consent of such Person and continues
undismissed or unstayed for 45 calendar days, or an order for relief is entered
in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any
----------------------------------
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 45 days after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any
---------
Subsidiary (i) a final judgment or order for the payment of money in an
aggregate amount exceeding the Threshold Amount (to the extent not covered by
independent third-party insurance as to which the insurer does not dispute
coverage), or (ii) any non-monetary final judgment or order to incur liabilities
in excess of the Threshold Amount and/or that has, or could reasonably be
expected to have, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B)
there is a period of 15 consecutive days during which a stay of enforcement of
such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan
-----
or Multiemployer Plan that has resulted or could reasonably be expected to
result in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA
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Credit Agreement
Affiliate fails to pay when due, after the expiration of any applicable grace
period, any installment payment with respect to its withdrawal liability under
Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of the Threshold Amount; or
(j) Invalidity of Loan Documents. Any Loan Document, at any time
----------------------------
after its execution and delivery and for any reason other than the agreement of
all the Lenders or satisfaction in full of all the Obligations, ceases to be in
full force and effect, or is declared by a court of competent jurisdiction to be
null and void, invalid or unenforceable in any respect; or the Borrower denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
(k) Change of Control. There occurs any Change of Control of the
-----------------
Borrower.
8.02 Remedies Upon Event of Default.
If any Event of Default occurs, the Administrative Agent shall, at the
request of, or may, with the consent of, the Required Lenders,
(a) declare the commitment of each Lender to make Loans and any
obligation of the Letter of Credit Issuer to make Letter of Credit Credit
Extensions to be terminated, whereupon such commitments and obligation shall be
terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the Letter of Credit
Obligations (in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in subsection
- -------- -------
(f) of Section 8.01, the obligation of each Lender to make Loans and any
------------
obligation of the Letter of Credit Issuer to make Letter of Credit Credit
Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Borrower to Cash
Collateralize the Letter of Credit Obligations as aforesaid shall automatically
become effective, in each case without further act of the Administrative Agent
or any Lender. Amounts deposited as Cash Collateral shall be applied by the
Administrative Agent to the payments of all Unreimbursed Amounts, including all
Letter of Credit Borrowings, and the unused portion thereof after all Letters of
Credit Obligations shall have expired or been repaid shall be applied to repay
other Obligations of the Borrower hereunder and under the other Loan Documents.
The Borrower shall pay the Administrative Agent its reasonable and customary
fees for, and indemnify the Administrative Agent from and against any reasonable
expenses incurred by the Administrative Agent in connection with, any conversion
of any Cash Collateral denominated in a Committed Currency to any other
Committed Currency in connection with the application of such Cash
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Credit Agreement
Collateral to Obligations of the Borrower denominated in such other Committed
Currency. After all such Letters of Credit Obligations shall have been satisfied
and all other Obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full and the Commitment of each Lender
terminated, the balance, if any, of the Cash Collateral shall be returned to the
Borrower (or such other Person as may be lawfully entitled thereto).
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The Letter of Credit Issuer shall act on behalf of the Lenders
with respect to any Letters of Credit issued by it and the documents associated
therewith until such time (and except for so long) as the Administrative Agent
may agree at the request of the Required Lenders to act for the Letter of Credit
Issuer with respect thereto; provided, however, that the Letter of Credit Issuer
-------- -------
shall have all of the benefits and immunities (i) provided to the Administrative
Agent in this Article IX with respect to any acts taken or omissions suffered by
----------
the Letter of Credit Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and the application and agreements for letters of
credit pertaining to the Letters of Credit as fully as if the term
"Administrative Agent" as used in this Article IX included the Letter of Credit
----------
Issuer with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the Letter of Credit Issuer.
9.02 Delegation of Duties.
The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
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Credit Agreement
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
9.03 Liability of Administrative Agent.
No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its
own gross negligence or willful misconduct in connection with its duties
expressly set forth herein), or (b) be responsible in any manner to any Lender
or participant for any recital, statement, representation or warranty made by
the Borrower or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Borrower or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower or any
Affiliate thereof.
9.04 Reliance by Administrative Agent.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation 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 (including counsel to the Borrower), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent
shall be fully justified in failing or refusing to take any action under any
Loan Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its 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. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and participants. Where this Agreement expressly permits or prohibits
an action unless the Required Lenders otherwise determine, the Administrative
Agent shall, and in all other instances, the Administrative Agent may, but shall
not be required to, initiate any solicitation for the consent or a vote of the
Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Lender that has signed this Agreement shall be
------------
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by the
59
Credit Agreement
Administrative Agent to such Lender for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender.
9.05 Notice of Default.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
- ------------ -------- -------
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 Credit Decision; Disclosure of Information by Administrative
Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Borrower or any Affiliate thereof, shall be deemed
to constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable bank
or other regulatory Laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to the
Borrower hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative
Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of any of the
Borrower or any of its Affiliates which may come into the possession of any
Agent-Related Person.
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Credit Agreement
9.07 Indemnification of Administrative Agent.
Whether or not the transactions contemplated hereby are consummated,
the Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of the Borrower and without limiting the
obligation of the Borrower to do so), pro rata, and hold harmless each Agent-
Related Person from and against any and all Indemnified Liabilities incurred by
it; provided, however, that no Lender shall be liable for the payment to any
-------- -------
Agent-Related Person of any portion of such Indemnified Liabilities to the
extent determined in a final, nonappealable judgment by a court of competent
jurisdiction to have been caused primarily by such Person's own gross negligence
or willful misconduct; provided, however, that no action taken in accordance
-------- -------
with the directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by the Administrative Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that the Administrative Agent is not
reimbursed for such expenses by or on behalf of the Borrower. The undertaking
in this Section shall survive termination of the Aggregate Commitments, the
payment of all Obligations hereunder and the resignation or replacement of the
Administrative Agent.
9.08 Administrative Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with each of the Borrower and its Affiliates as though Bank of
America were not the Administrative Agent, the Letter of Credit Issuer or the
Swing Line Lender hereunder and without notice to or consent of the Lenders.
The Lenders acknowledge that, pursuant to such activities, Bank of America or
its Affiliates may receive information regarding the Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Borrower or such Affiliate) and acknowledge that the Administrative
Agent shall be under no obligation to provide such information to them. With
respect to its Committed Loans and participations in other Obligations, Bank of
America shall have the same rights and powers under this Agreement as any other
Lender and may exercise such rights and powers as though it were not the
Administrative Agent, the Letter of Credit Issuer or the Swing Line Lender and
the terms "Lender" and "Lenders" include Bank of America in its individual
capacity.
9.09 Successor Administrative Agent.
The Administrative Agent may resign as Administrative Agent upon 30
days' notice to the Lenders. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders which successor administrative agent shall
be a commercial bank organized under the laws of the United States of America or
any State thereof, have a combined capital and surplus of at least
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Credit Agreement
$500,000,000 and shall be consented to by the Borrower at all times other than
during the existence of an Event of Default (which consent of the Borrower shall
not be unreasonably withheld or delayed). If no successor administrative agent
is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor administrative agent from among
the Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, the Person acting as such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "Administrative Agent shall mean such successor
administrative agent and the retiring Administrative Agent's appointment, powers
and duties as Administrative Agent shall be terminated. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article IX and Sections 10.04 and 10.05 shall inure to its
---------- -------------- -----
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
9.10 Other Agents; Lead Managers.
None of the Lenders identified on the facing page or signature pages
of this Agreement as a "syndication agent," "documentation agent," "co-agent,"
"lead manager", "lead arranger" or "book manager" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none
of the Lenders so identified shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of the Lenders so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc.
No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower therefrom, shall
be effective unless in writing signed by the Required Lenders and the Borrower
and acknowledged by the Administrative Agent, and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no such amendment, waiver or consent
-------- -------
shall, unless in writing and signed by each of the Lenders directly affected
thereby and by the Borrower, and acknowledged by the Administrative Agent, do
any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate
any Commitment terminated pursuant to Section 8.02), except for any such
------------
increase made in accordance with Section 2.03 or;
------------
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Credit Agreement
(b) postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Lenders (or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or Letter of Credit Borrowing, or (subject to clause (iv) of
the proviso below) any fees or other amounts payable hereunder or under any
other Loan Document; provided, however, that only the consent of the Required
-------- -------
Lenders shall be necessary to amend the definition of "Default Rate" or to waive
any obligation of the Borrower to pay interest at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the
aggregate unpaid principal amount of the Loans and Letter of Credit Obligations
which is required for the Lenders or any of them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender
(except for any change resulting from Section 2.03 or 3.06(b)); or
------------ -------
(f) amend this Section, or Section 2.14, or any provision herein
------------
providing for consent or other action by all the Lenders;
and, provided further, that (i) no amendment, waiver or consent shall,
-------- -------
unless in writing and signed by the Letter of Credit Issuer in addition to the
Required Lenders or each directly-affected Lender, as the case may be, affect
the rights or duties of the Letter of Credit Issuer under this Agreement or any
Letter of Credit Application relating to any Letter of Credit issued or to be
issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Swing Line Lender in addition to the Required Lenders or each
directly-affected Lender, as the case may be, affect the rights or duties of the
Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to
the Required Lenders or each directly-affected Lender, as the case may be,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; and (iv) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed only by the respective
parties thereto. Notwithstanding anything to the contrary herein, any Lender
that has a Voting Percentage of zero shall not have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the Pro Rata
Share of such Lender may not be increased (except for any such increase
resulting from Section 2.03 or 3.06(b)) without the consent of such Lender.
------------ -------
10.02 Notices and Other Communications; Facsimile Copies.
(a) General. Unless otherwise expressly provided herein, all
-------
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered to the
address, facsimile number or (subject to subsection (c) below) electronic mail
address specified for notices on Schedule 10.02 (or in any Assignment and
--------------
Assumption Agreement); or, in the case of the Borrower, the Administrative
Agent, the Letter of Credit Issuer or the Swing Line Lender, to such other
address as shall be designated by such party in a notice to the other parties,
and in the case of any other Lender or any other party, to such other address as
shall be designated by such party in a notice to the Borrower, the
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Credit Agreement
Administrative Agent, the Letter of Credit Issuer and the Swing Line Lender. All
such notices and other communications shall be deemed to be given or made upon
the earlier to occur of (i) actual receipt by the intended recipient and (ii)
(A) if delivered by hand or by courier, when signed for by the intended
recipient; (B) if delivered by mail, four Business Days after deposit in the
mails, postage prepaid; (C) if delivered by facsimile, when sent and receipt has
been confirmed by telephone; and (D) if delivered by electronic mail (which form
of delivery is subject to the provisions of subsection (c) below), when
delivered; provided, however, that notices and other communications to the
-------- -------
Administrative Agent, the Letter of Credit Issuer and the Swing Line Lender
pursuant to Article II shall not be effective until actually received by such
----------
Person. Any notice or other communication permitted to be given, made or
confirmed by telephone hereunder shall be given, made or confirmed by means of a
telephone call to the intended recipient at the number specified on Schedule
--------
10.02, it being understood and agreed that a voicemail message shall in no event
- -----
be effective as a notice, communication or confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
---------------------------------------------------
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on the
Borrower, the Administrative Agent and the Lenders. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
-------- -------
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
------------------------------
intranet websites may be used only to distribute routine communications, such as
financial statements contemplated by Section 6.01, periodic and special reports,
------------
proxies and other items contemplated by Section 6.02 (d) and other similar
----------------
information, and to distribute Loan Documents for execution by the parties
thereto, and may not be used for any other purpose. Information required to be
delivered pursuant to subsection (a) or (b) of Section 6.01 or subsection (d) of
------------
Section 6.02 shall be deemed to have been delivered on the date on which the
- ------------
Borrower provides notice to the Lenders that such information has been posted on
the Borrower's website on the internet at the website address listed on Schedule
--------
10.02 or at another website identified in such notice and accessible by the
- -----
Lenders without charge; provided that such notice may be included in a
--------
Compliance Certificate delivered pursuant to subsection (b) of Section 6.02.
------------
(d) Reliance by Administrative Agent and Lenders. The Administrative
--------------------------------------------
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of the Borrower even if (i) such notices were
not made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.
All telephonic notices to and other communications with the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.
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Credit Agreement
10.03 No Waiver; Cumulative Remedies.
No failure by any Lender or the Administrative Agent to exercise, and
no delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein or therein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
10.04 Attorney Costs, Expenses and Taxes.
The Borrower agrees to pay or reimburse (a) the Administrative Agent
for all out-of-pocket costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement and the
other Loan Documents and any amendment, waiver, consent or other modification of
the provisions hereof and thereof (whether or not the transactions contemplated
hereby or thereby are consummated), and the consummation and administration of
the transactions contemplated hereby and thereby, including all Attorney Costs,
and (b) the Administrative Agent and each Lender for all costs and expenses
incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
and the cost of independent public accountants and other outside experts
retained by the Administrative Agent or any Lender. The agreements in this
Section shall survive the termination of the Aggregate Commitments and repayment
of all other Obligations.
10.05 Indemnification by the Borrower.
Whether or not the transactions contemplated hereby are consummated,
the Borrower agrees to indemnify, save and hold harmless each Agent-Related
Person, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against: (a) any and all claims, demands, actions or
-----------
causes of action that are asserted against any Indemnitee by any Person relating
directly or indirectly to a claim, demand, action or cause of action that such
Person asserts or may assert against the Borrower, any Affiliate of the Borrower
or any of their respective officers or directors; (b) any and all claims,
demands, actions or causes of action that may at any time (including at any time
following repayment of the Obligations and the resignation of the Administrative
Agent or the replacement of any Lender) be asserted or imposed against any
Indemnitee, arising out of or relating to, the Loan Documents, any predecessor
loan documents, any Commitment, the use or contemplated use of the proceeds of
any Credit Extension, or the relationship of the Borrower, the Administrative
Agent and the Lenders under this Agreement or any other Loan Document; (c) any
administrative or investigative proceeding by any Governmental Authority arising
out of or related to a claim, demand, action or cause of action
65
Credit Agreement
described in subsection (a) or (b) above; and (d) any and all liabilities
(including liabilities under indemnities), losses, costs or expenses (including
Attorney Costs) that any Indemnitee suffers or incurs as a result of the
assertion of any foregoing claim, demand, action, cause of action or proceeding,
or as a result of the preparation of any defense in connection with any
foregoing claim, demand, action, cause of action or proceeding, in all cases,
whether or not arising out of the negligence of an Indemnitee, and whether or
not an Indemnitee is a party to such claim, demand, action, cause of action or
proceeding (all the foregoing, collectively, the "Indemnified Liabilities");
-----------------------
provided that no Indemnitee shall be entitled to indemnification for any claim
- --------
to the extent that such claim is determined in a final, nonappealable judgment
by a court of competent jurisdiction to have been caused primarily by such
Indemnitee's own gross negligence or willful misconduct. No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks, Inc. or other similar information
transmission systems in connection with this Agreement. The agreements in this
Section shall survive the termination of the Aggregate Commitments and repayment
of all other Obligations.
10.06 Payments Set Aside.
To the extent that the Borrower makes a payment to the Administrative
Agent or any Lender, or the Administrative Agent or any Lender exercises its
right of set-off, and such payment or the proceeds of such set-off or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to
the Administrative Agent upon demand its applicable share of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect.
10.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that, except as specifically permitted pursuant to
Section 7.02 (a), the Borrower may not assign or otherwise transfer any of its
- ----------------
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Indemnitees) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in Letter of Credit Obligations and in Swing Line
Loans) at the time owing to it); provided that (i) the aggregate
--------
66
Credit Agreement
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) subject to each such assignment, determined as of the date the
Assignment and Assumption Agreement with respect to such assignment is delivered
to the Administrative Agent, shall not be less than $5,000,000 unless each of
the Administrative Agent and, so long as no Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be
unreasonably withheld or delayed), except (A) in the case of an assignment of
the entire remaining amount of the assigning Lender's Commitment and the Loans
at the time owing to it or (B) in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender, (ii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations as a Lender under this Agreement
with respect to the Loans or the Commitment assigned (except that this clause
(ii) shall not apply to rights in respect of outstanding Swing Line Loans other
than in respect of participations in such Loans) and (iii) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption Agreement, together with a processing and recordation fee of
$3,500. Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption Agreement, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Assumption Agreement, have the rights and obligations of
a Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption Agreement, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption Agreement covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.07,
-------------
10.04 and 10.05). Upon request, the Borrower (at its expense) shall execute and
- ----- -----
deliver new or replacement Notes to the assigning Lender and the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection 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 subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption Agreement delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and Letter of Credit
Obligations owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
--------
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Any Lender (other than the Swing Line Lender) may, without the
consent of, or notice to, the Borrower or the Administrative Agent or any other
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and/or obligations
-----------
under this Agreement (including all or a portion of its Commitment and/or the
Loans (including such Lender's participations in Letter of Credit Obligations
and/or Swing Line
67
Credit Agreement
Loans) owing to it); provided that (i) such Lender's obligations under this
--------
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
--------
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification that would (i) postpone any date upon which any
payment of money is scheduled to be paid to such Participant or (ii) reduce the
principal, interest, fees or other amounts payable to such Participant. Subject
to subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same
------------- ---- ----
extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.09 as though it
-------------
were a Lender, provided such Participant agrees to be subject to Section 2.14 as
-------- ------------
though it were a Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 3.01 or 3.04 than the applicable Lender would have been
------------ ----
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 3.01 unless
------------
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
-------
10.15 as though it were a Lender.
- -----
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (including under its
Notes, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
--------
such pledge or assignment shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) If the consent of the Borrower to an assignment or to an
Eligible Assignee is required hereunder (including a consent to an assignment
which does not meet the minimum assignment threshold specified in clause (i) of
the proviso to the first sentence of Section 10.07(b)), the Borrower shall be
-----------------
deemed to have given its consent five Business Days after the date notice
thereof has been delivered by the assigning Lender (through the Administrative
Agent) to the Borrower unless such consent is expressly refused by the Borrower
prior to such fifth Business Day.
(h) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
-----------------
(c) an Approved Fund; and (d) any other Person (other than a natural Person)
approved by (i) the Administrative Agent, in the case of any assignment of a
Committed Loan, (ii) the Letter of Credit Issuer, (iii) the Swing Line Lender,
and (iv) unless (A) such Person is taking delivery of
68
Credit Agreement
an assignment in connection with physical settlement of a credit derivatives
transaction or (B) an Event of Default has occurred and is continuing, the
Borrower (each such approval referred to in clauses (i) through (iv) not to be
unreasonably withheld or delayed).
"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.
"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.
(i) Notwithstanding anything to the contrary contained herein,
if at any time Bank of America assigns all of its Commitment and Loans pursuant
to subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as Letter of Credit Issuer and/or (ii) upon
five Business Days' notice to the Borrower, terminate the Swing Line. In the
event of any such resignation as Letter of Credit Issuer or termination of the
Swing Line, the Borrower shall be entitled to appoint from among the Lenders a
successor Letter of Credit Issuer or Swing Line Lender hereunder; provided,
--------
however, that no failure by the Borrower to appoint any such successor shall
- -------
affect the resignation of Bank of America as Letter of Credit Issuer or the
termination of the Swing Line, as the case may be. Bank of America shall retain
all the rights and obligations of the Letter of Credit Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as Letter of Credit Issuer and all Letter of Credit Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Committed Loans or fund participations in Unreimbursed Amounts pursuant to
Section 2.04(c)). If Bank of America terminates the Swing Line, it shall retain
- ---------------
all the rights of the Swing Line Lender provided for hereunder with respect to
Swing Line Loans made by it and outstanding as of the effective date of such
termination, including the right to require the Lenders to make Base Rate
Committed Loans or fund participations in outstanding Swing Line Loans pursuant
to Section 2.05(c).
---------------
10.08 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
69
Credit Agreement
transaction relating to obligations of the Borrower or any of its Subsidiaries;
(g) with the consent of the Borrower; (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Borrower or any of its
Subsidiaries; or (i) to the National Association of Insurance Commissioners or
any other similar organization or any nationally recognized rating agency that
requires access to information about a Lender's or its Affiliates' investment
portfolio in connection with ratings issued with respect to such Lender or its
Affiliates. In addition, the Administrative Agent and the Lenders may disclose
the existence of this Agreement and information about this Agreement to market
data collectors, similar service providers to the lending industry, and service
providers to the Administrative Agent and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents, the
Commitments, and the Credit Extensions. For the purposes of this Section,
"Information" means all information received from the Borrower or any of its
- ------------
Subsidiaries relating to the Borrower, its Subsidiaries or their business, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by the Borrower or any of
its Subsidiaries; provided that, in the case of information received from the
--------
Borrower or any of its Subsidiaries after the date hereof, such information is
clearly identified in writing at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
10.09 Set-off.
In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, each
Lender is authorized at any time and from time to time, without prior notice to
the Borrower, any such notice being waived by the Borrower to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the Borrower against any and all Obligations owing to such Lender,
now or hereafter existing, irrespective of whether or not the Administrative
Agent or such Lender shall have made demand under this Agreement or any other
Loan Document and although such Obligations may be contingent or unmatured.
Each Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender; provided, however,
-------- -------
that the failure to give such notice shall not affect the validity of such set-
off and application.
10.10 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan
Document, the interest paid or agreed to be paid under the Loan Documents shall
not exceed the maximum rate of non-usurious interest permitted by applicable Law
(the "Maximum Rate"). If the Administrative Agent or any Lender shall receive
------------
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted
70
Credit Agreement
for, charged, or received by the Administrative Agent or a Lender exceeds the
Maximum Rate, such Person may, to the extent permitted by applicable Law, (a)
characterize any payment that is not principal as an expense, fee, or premium
rather than interest, (b) exclude voluntary prepayments and the effects thereof,
and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations.
10.11 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10.12 Integration.
This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in
--------
favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
10.13 Survival of Representations and Warranties.
All representations and warranties made hereunder and in any other
Loan Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery hereof
and thereof. Such representations and warranties have been or will be relied
upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default or Event of Default at the time of any Credit
Extension, and shall continue in full force and effect as long as any Loan or
any other Obligation shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
10.14 Severability.
Any provision of this Agreement and the other Loan Documents that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.15 Foreign Lenders.
(a) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver to
--------------
the Administrative Agent and the Borrower, prior to receipt of any payment
subject to withholding under the Code (or
71
Credit Agreement
upon accepting an assignment of an interest herein), two duly signed completed
copies of either IRS Form W-8BEN or any successor thereto (relating to such
Person and entitling it to an exemption from, or reduction of, withholding tax
on all payments to be made to such Person by the Borrower pursuant to this
Agreement) or IRS Form W-8ECI or any successor thereto (relating to all payments
to be made to such Person by the Borrower pursuant to this Agreement) or such
other evidence satisfactory to the Borrower and the Administrative Agent that
such Person is entitled to an exemption from, or reduction of, U.S. withholding
tax. Thereafter and from time to time, each such Person shall (i) promptly
submit to the Administrative Agent and the Borrower such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to the Borrower and
the Administrative Agent of any available exemption from or reduction of, United
States withholding taxes in respect of all payments to be made to such Person by
the Borrower pursuant to this Agreement, (ii) promptly notify the Administrative
Agent of any change in circumstances which would modify or render invalid any
claimed exemption or reduction, and (iii) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and
as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that the Borrower make any
deduction or withholding for taxes from amounts payable to such Person. If such
Person fails to deliver the above forms or other documentation, then the
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction, and, without limiting the obligation of the
Borrower pursuant to Section 3.01, the amounts payable to such Person by the
------------
Administrative Agent shall be reduced by the amount so withheld. If any
Governmental Authority asserts that the Administrative Agent did not properly
withhold any tax or other amount from payments made in respect of such Person,
such Person shall indemnify the Administrative Agent therefor, including all
penalties and interest, any taxes imposed by any jurisdiction on the amounts
payable to the Administrative Agent under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent. The obligation of the
Lenders under this Section shall survive the termination of the Aggregate
Commitments, repayment of all Obligations and the resignation or replacement of
the Administrative Agent. Forms delivered by a Foreign Lender to the
Administrative Agent and forwarded by the Administrative Agent to the Borrower
shall satisfy the delivery obligation of such Foreign Lender to the Borrower
under this Section.
(b) The Borrower will not be required to pay any additional amounts
in respect of United States Federal income tax pursuant to subsections (a) or
(c) of Section 3.01 to the Administrative Agent for the account of any Foreign
------------
Lender, or to any Foreign Lender for the account of any Lending Office of such
Foreign Lender:
(i) if such Foreign Lender shall have delivered to the Administrative
Agent and the Borrower a Form W-8ECI in respect of such Lending Office
pursuant to the preceding subsection (a), and such Foreign Lender shall
cease to be entitled to exemption from deduction or withholding of United
States Federal income tax in respect of payments by the Borrower hereunder
for the account of such Lending Office for any reason other than a change
in United States law or regulations or in the official interpretation of
such law or regulations by any governmental authority charged with the
72
Credit Agreement
interpretation or administration thereof (whether or not having the force
of law) after the date of delivery of such Form W-8ECI; or
(ii) if the Foreign Lender shall have delivered to the
Administrative Agent and the Borrower a Form W-8BEN in respect of such
Lending Office pursuant to preceding subsection (a), and such Foreign
Lender shall cease to be entitled to exemption from deduction or
withholding of United States Federal income tax in respect of payments by
the Borrower hereunder for the account of such Lending Office for any
reason other than a change in United States law or regulations or any
applicable tax treaty or regulations or in the official interpretation of
any such law, treaty or regulations by any governmental authority charged
with the interpretation or administration thereof (whether or not having
the force of law) after the date of delivery of such Form W-8BEN;
provided, however, that clauses (i) and (ii) of this Section 10.15(b) shall
- -------- ------- ----------------
apply only to periods during which such Foreign Lender shall cease to be
entitled to exemption for the reasons described.
10.16 Removal and Replacement of Lenders.
(a) Under any circumstances set forth herein providing that the
Borrower shall have the right to remove or replace a Lender as a party to this
Agreement, the Borrower may, upon notice to such Lender and the Administrative
Agent, (i) remove such Lender by terminating such Lender's Commitment or (ii)
replace such Lender by causing such Lender to assign its Commitment (without
payment of any assignment fee) pursuant to Section 10.07(b) to one or more other
----------------
Lenders or Eligible Assignees procured by the Borrower; provided, however, that
-------- -------
if the Borrower elects to exercise such right with respect to any Lender
pursuant to Section 3.06(b), it shall be obligated to remove or replace, as the
---------------
case may be, all Lenders that have made similar requests for compensation
pursuant to Section 3.01 or 3.04. The Borrower shall (x) pay in full all
------------ ----
principal, interest, fees and other amounts owing to such Lender through the
date of removal or replacement (including any amounts payable pursuant to
Section 3.05), (y) provide appropriate assurances and indemnities (which may
- ------------
include letters of credit) to the Letter of Credit Issuer and the Swing Line
Lender as each may reasonably require with respect to any continuing obligation
to purchase participation interests in any Letter of Credit Obligations or any
Swing Line Loans then outstanding, and (z) release such Lender from its
obligations under the Loan Documents. Any Lender being replaced shall execute
and deliver an Assignment and Assumption Agreement with respect to such Lender's
Commitment and outstanding Credit Extensions. The Administrative Agent shall
distribute an amended Schedule 2.01, which shall be deemed incorporated into
-------------
this Agreement, to reflect changes in the identities of the Lenders and
adjustments of their respective Commitments and/or Pro Rata Shares resulting
from any such removal or replacement.
(b) In order to make all the Lenders' interests in any outstanding
Credit Extensions ratable in accordance with any revised Pro Rata Shares after
giving effect to the removal or replacement of a Lender, the Borrower shall pay
or prepay, if necessary, on the effective date thereof, all outstanding
Committed Loans of all Lenders, together with any amounts due under Section
-------
3.05. The Borrower may then request Committed Loans from the Lenders in
- ----
accordance with their revised Pro Rata Shares. The Borrower may net any
payments
73
Credit Agreement
required hereunder against any funds being provided by any Lender or Eligible
Assignee replacing a terminating Lender. The effect for purposes of this
Agreement shall be the same as if separate transfers of funds had been made with
respect thereto.
(c) This section shall supersede any provision in Section 10.01 to
-------------
the contrary.
10.17 Governing Law.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS
- --------
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER
DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE
MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.
10.18 Waiver of Right to Trial by Jury.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY
LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT,
OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY
74
Credit Agreement
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
[Signature pages follow.]
75
Credit Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
DANAHER CORPORATION
By: /s/ Christopher C. McMahon
-----------------------------------
Name: Christopher C. McMahon
Title: Vice President and Controller
BANK OF AMERICA, N.A., as a Lender, the Letter of
Credit Issuer, the Swing Line Lender and the
Administration Agent
By: /s/ John W. Pocalyko
-----------------------------------
Name: John W. Pocalyko
Title: Managing Director
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ Todd S. Meller
-----------------------------------
Name: Todd S. Meller
Title: Managing Director
SUNTRUST BANK, as a Lender
By: /s/ Sandra W. Jansky
-----------------------------------
Name: Sandra W. Jansky
Title: Senior Vice President/Managing Director
WACHOVIA BANK, N.A., as a Lender
By: /s/ Meg Beveridge
-----------------------------------
Name: Meg Beveridge
Title: Vice President
THE CHASE MANHATTAN BANK,
as a Lender
By: /s/ Randolph E. Cates
-----------------------------------
Name: Randolph E. Cates
Title: Vice President
Signature Page
Credit Agreement
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Christopher McKean
-----------------------------------
Name: Christopher McKean
Title: Second Vice President
HSBC BANK USA, as a Lender
By: /s/ Sarah McClintock
-----------------------------------
Name: Sarah McClintock
Title: First Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a Lender
By: /s/ Pamela Donnely
-----------------------------------
Name: Pamela Donnely
Title: Vice President
CITIBANK, N.A., as a Lender
By: /s/ Prakash M. Chonkar
-----------------------------------
Name: Prakash M. Chonkar
Title: Managing Director
SANPAOLO IMI S.p.A., as a Lender
By: /s/ Luca Sacchi
-----------------------------------
Name: Luca Sacchi
Title: Vice President
By: /s/ Carlo Persico
-----------------------------------
Name: Carlo Persico
Title: General Manager
BANK OF NEW YORK, as a Lender
By: /s/ Steven P. Cavaluzzo
-----------------------------------
Name: Steven P. Cavaluzzo
Title: Vice President
Signature Page
Credit Agreement
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Lender Commitment Pro Rata Share
- --------------------------------------------------------------------------------
Bank of America, N.A. $ 75,000,000 15.000000000%
The Bank of Nova Scotia $ 70,000,000 14.000000000%
SunTrust Bank $ 60,000,000 12.000000000%
Wachovia Bank, N.A. $ 60,000,000 12.000000000%
The Chase Manhattan Bank $ 40,000,000 8.000000000%
The Northern Trust Company $ 40,000,000 8.000000000%
HSBC Bank USA $ 40,000,000 8.000000000%
Bank of Tokyo-Mitsubishi Trust Company $ 40,000,000 8.000000000%
Citibank, N.A. $ 25,000,000 5.000000000%
SanPaolo IMI S.p.A. $ 25,000,000 5.000000000%
The Bank of New York $ 25,000,000 5.000000000%
Total $500,000,000 100.000000000%
2.01 - 1
Credit Agreement
SCHEDULE 5.06
LITIGATION
1. A former subsidiary of the Borrower is engaged in litigation in several
states with respect to product liability. The Borrower sold the subsidiary in
1987. Under the terms of the sale agreement, the Borrower agreed to indemnify
the buyer of the subsidiary for product liability related to tools manufactured
by the subsidiary prior to June 4, 1987. The cases involve approximately 3,000
plaintiffs, in state and federal courts. All other major U.S. air tool
manufacturers are also defendants. The gravamen of these complaints is that the
defendants' air tools, when used in different types of manufacturing
environments over extended periods of time, were defective in design and caused
various physical injuries. The plaintiffs seek compensatory and punitive
damages. The Borrower has accepted an agreement in principle to settle these
claims.
2. A subsidiary of the Borrower, Joslyn Manufacturing Company (JMC),
previously operated wood- treating facilities that chemically preserved utility
poles, pilings and railroad ties. All such treating operations were
discontinued or sold prior to 1982. These facilities used wood preservatives
that included creosote, pentachlorophenol and chromium-arsenic-copper. While
preservatives were handled in accordance with then existing law, environmental
law now imposes retroactive liability, in some circumstances, on persons who
owned or operated wood-treating sites. JMC is remediating some of its former
sites and will remediate other sites in the future. The Borrower has made a
provision for environmental remediation; however, there can be no assurance that
estimates of environmental liabilities will not change.
3. A subsidiary of the Borrower at one time manufactured brake grinding
equipment for use in automobile and truck repair facilities. Certain older-
style brake shoe equipment contained asbestos and during the grinding process
brake dust may have been emitted; such brake dust has been linked by certain
claimants to alleged asbestos related illnesses. The subsidiary has been a
party to various of these claims, although none of the subsidiary's products use
or contain asbestos. The Borrower does not believe at this time that these
claims will result in a material adverse effect on its financial position.
5.06 - 1
Litigation
SCHEDULE 7.01
EXISTING LIENS
- -----------------------------------------------------------------------------------------------------------------------------------
UCC THRU
DEBTOR SECURED PARTY DATE DATE OF LIEN NUMBER
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Hewlett-Packard Company Finance & 05/29/2001 10/02/1997 19972084367
5500 Lindbergh Drive Remarketing Division 20 Perimeter Summit
Loveland, CO 80539 Blvd. Atlanta, GA 30319
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Danka Office Imaging 4333 Edgewood RD NE, 05/29/2001 11/05/1997 19972098072
5500 Lindbergh Drive Cedar Rapids, IA 52499-1400
Loveland, CO 80539
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Green Tree Vendor Services Group 3601 05/29/2001 12/07/1998 19982076211
5500 Lindbergh Drive Minnesota Drive, 9th Floor, Bloomington, MN
Loveland, CO 80539 55435
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Green Tree Vendor Services Group 3601 05/29/2001 12/17/1998 19982076213
5500 Lindbergh Drive, Minnesota Drive, 9th Floor, Bloomington, MN
Loveland, CO 80539 55435
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Crocker Capital 1201 Dove Street, #600 05/29/2001 03/24/1999 19992016575
5500 Lindbergh Drive Newport Beach, CA 92660
Loveland, CO 80539
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Crocker Capital 1201 Dove Street, #600 05/29/2001 05/17/1999 19992027770 -
5500 Lindbergh Drive Specified Equipment Assignment
Loveland, CO 80539 Newport Beach, CA 92660
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Dell Financial Services, L.P. 14050 Summit 05/29/2001 08/04/1999 19992044128
5500 Lindbergh Drive Drive Building A Suite 101 Austin, TX 78758
Loveland, CO 80539
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Dell Financial Services, L.P. 14050 Summit 05/29/2001 08/09/1999 19992044769
5500 Lindbergh Drive Drive Building A Suite 101 Austin, TX 78758
Loveland, CO 80539
- -----------------------------------------------------------------------------------------------------------------------------------
Hach Company Dell Financial Services, L.P. 05/29/2001 10/13/2000 20002089773
5500 Lindbergh Drive, 14050 Summit Drive Building A
Loveland, CO 80539 Suite 101
Austin, TX 78758
- -----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------
DEBTOR JURISDICTION DESCRIPTION
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive, Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
Hach Company Colorado, Central Index Specified
5500 Lindbergh Drive, Equipment
Loveland, CO 80539
- ----------------------------------------------------------------------------
7.01 - 1
Existing Liens
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Company Bell Atlantic TriCon Leasing Corporation 95 05/18/2001 06/08/1993 1993116876
402 East Gutierrez Street, N. Route 17 South Paramus, NJ 07653
Santa Barbara, CA 93102
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Company Bell Atlantic TriCon Leasing Corporation 95 05/18/2001 04/21/1998 1998112C0216-
Electro Kinetics Division N. Route 17 South Paramus, NJ 07653 Continuation
402 East Gutierrez Street
Santa Barbara, CA 93102
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Pitney Bowes Credit Corporation 05/18/2001 12/24/1996 1.99636E+11
22715 Savi Ranch Pkw 201 Marritt Seven
Yorba Lida, CA Norwalk, CT 06856
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Company First Bank of Highland Park 1835 First 05/18/2001 06/23/1997 1.99717E+11
620 Newport Center Drive Street Highland Park, IL 60035
Suite 700
Newport Beach, CA 92660
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Company Marquette National Bank 05/18/2001 11/21/1997 1.99733E+11
620 Newport Center Drive 8020 South Harlem Avenue
Suite 700 Bridgeview, IL 60455
Newport Beach, CA 92660
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Company De Lage Landen Financial Services Inc. 1055 05/18/2001 01/04/2000 20001160742
1800 Highland Avenue Westlakes Drive Barwyn, PA 19312
Duarte, CA 91010
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Company De Lage Landen Financial Services Inc. 1055 05/18/2001 08/08/2000 2.00002E+12
1800 Highland Avenue Westlakes Drive Barwyn, PA 19312
Duarte, CA 91010
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Company De Lage Landen Financial Services Inc. 1055 05/18/2001 10/10/2000 2.00029E+11
1800 Highland Avenue Westlakes Drive,
Duarte, CA 91010 Barwyn, PA 19312
- ----------------------------------------------------------------------------------------------------------------------------------
Pacific Scientific Company De Lage Landen Financial Services Inc. 1055 05/18/2001 05/15/2001 2.00114E+11
1800 Highland Avenue Westlakes Drive,
Duarte, CA 91010 Barwyn, PA 19312
- ----------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation First Interstate Bank of WA, NA 05/22/2001 09/27/1996 96-271-0149
6920 Seaway Blvd. PO Box 160 M/S 213
Renton, WA 98055 Seattle, WA 981111
- ----------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation First Interstate Bank of WA, NA king 05/22/2001 03/25/1998 98-084-0349-
6920 Seaway Blvd. County Commercial Banking Amendment
Renton, WA 98055 PO Box 160 M/S 213
Seattle, WA 981111
- ----------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
Pacific Scientific Company CA, Secretary of State Specified
402 East Gutierrez Street, Equipment
Santa Barbara, CA 93102
- -------------------------------------------------------------------------------------------------
Pacific Scientific Company CA, Secretary of State Specified
Electro Kinetics Division Equipment
402 East Gutierrez Street
Santa Barbara, CA 93102
- -------------------------------------------------------------------------------------------------
Pacific Scientific CA, Secretary of State Specified
22715 Savi Ranch Pkw Equipment
Yorba Lida, CA
- -------------------------------------------------------------------------------------------------
Pacific Scientific Company CA, Secretary of State Specified
620 Newport Center Drive Equipment
Suite 700
Newport Beach, CA 92660
- -------------------------------------------------------------------------------------------------
Pacific Scientific Company CA, Secretary of State Specified
620 Newport Center Drive Equipment
Suite 700
Newport Beach, CA 92660
- -------------------------------------------------------------------------------------------------
Pacific Scientific Company CA, Secretary of State Specified
1800 Highland Avenue Equipment
Duarte, CA 91010
- -------------------------------------------------------------------------------------------------
Pacific Scientific Company CA, Secretary of State Specified
1800 Highland Avenue Equipment
Duarte, CA 91010
- -------------------------------------------------------------------------------------------------
Pacific Scientific Company CA, Secretary of State Specified
1800 Highland Avenue Equipment
Duarte, CA 91010
- -------------------------------------------------------------------------------------------------
Pacific Scientific Company CA, Secretary of State Specified
1800 Highland Avenue Equipment
Duarte, CA 91010
- -------------------------------------------------------------------------------------------------
Fluke Corporation WA, Department of Leasing Specified
6920 Seaway Blvd. Equipment
Renton, WA 98055
- -------------------------------------------------------------------------------------------------
Fluke Corporation WA, Department of Leasing Specified
6920 Seaway Blvd. Equipment
Renton, WA 98055
- -------------------------------------------------------------------------------------------------
7.01 - 2
Existing Liens
- ------------------------------------------------------------------------------------------------------------------------------------
Washington Mutual Bank doing 05/22/2001 09/09/1998 98-252-0396 - WA, Department of Leasing Specified
Fluke Corporation business as Western Bank Full Assignment Equipment
6920 Seaway Blvd. 188 106th Ave. NE 570
Renton, WA 98055 Bellevue, WA 98004
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation Washington Mutual Bank doing 05/22/2001 08/23/1999 99-235-0433 - WA, Department of Leasing Specified
6920 Seaway Blvd. business as Western Bank Full Assignment Equipment
Renton, WA 98055 188 106th Ave. NE#570
Bellevue, WA 98004
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation Wells Fargo Bank, NA 05/22/2001 01/13/1997 97-013-0377 WA, Department of Leasing Specified
6920 Seaway Blvd. 999 Third Avenue, 11th Floor Equipment
Renton, WA 98055 Seattle, WA 98104
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation Washington Mutual Bank doing 05/22/2001 09/09/1998 98-252-0398-Full WA, Department of Leasing Specified
6920 Seaway Blvd. business as Western Bank 188 Assignment Equipment
Renton, WA 98055 106th Ave.NE #570
Bellevue, WA 98004
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation Washington Mutual Bank doing 05/22/2001 01/13/2000 00-013-0134-Full WA, Department of Leasing Specified
6920 Seaway Blvd. business as Western Bank Assignment Equipment
Renton, WA 98055 188 106th Ave. NE #570
Bellevue, WA 98004
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation Pitney Bowes Credit 05/22/2001 06/19/1997 97-170-0415 WA, Department of Leasing Specified
PO Box 9090 Corporation 27 Waterview, Equipment
Everett, WA 93206 Shelton, CT 06484-4361
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation Pitney Bowes Credit 05/22/2001 02/05/1999 99-036-0418 WA, Department of Leasing Specified
PO Box 9090 Corporation Waterview, 27 Equipment
Everett, WA 93206 Shelton, CT 06484-4361
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation Pitney Bowes Credit 05/22/2001 02/22/2000 00-053-0641 WA, Department of Leasing Specified
PO Box 9090 Corporation Waterview, 27 Equipment
Everett, WA 93206 Shelton, CT 06484-4361
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation Pitney Bowes Credit 05/22/2001 03/23/2000 00-083-0278 WA, Department of Leasing Specified
PO Box 9090 Corporation Waterview, 27 Equipment
Everett, WA 93206 Shelton, CT 06484-4361
- ------------------------------------------------------------------------------------------------------------------------------------
Fluke Corporation CIT Technologies Corporation 05/22/2001 03/09/2001 01-068-0043 WA, Department of Leasing Specified
PO Box 9090 1830 W. Airfield Drive DFW Equipment
Everett, WA 93206 Airport 75281
- ------------------------------------------------------------------------------------------------------------------------------------
Kollmorgen Provident Commercial Group, 06/01/2001 04/24/1996 082126 NY, Secretary of State Specified
Corporation Inc. One East Fourth Street Equipment
Reservoir Place Cincinnati, OH 45202
1601 Trapelo Road
Waltham, MA 02154
- ------------------------------------------------------------------------------------------------------------------------------------
7.01-3
Existing Liens
- ------------------------------------------------------------------------------------------------------------------------------------
Kollmorgen Corporation Provident Commercial Group, Inc. 06/01/2001 12/27/2000 247923 NY, Secretary of State Specified
Reservoir Place One East Fourth Street Continuation Equipment
1601 Trapelo Road Cincinnati, OH 45202
Waltham, MA 02154 Attn: Loan Review - 217A
- ------------------------------------------------------------------------------------------------------------------------------------
Kollmorgen Corporation Provident Commercial Group, Inc. 06/01/2001 01/03/1997 001627 NY, Secretary of State Specified
Reservoir Place One East Fourth Street Equipment
1601 Trapelo Road Cincinnati, OH 45202
Waltham, MA 02154
- ------------------------------------------------------------------------------------------------------------------------------------
Kollmorgen Corporation Xerox Corporation 06/01/2001 03/02/2000 042394 NY, Secretary of State Specified
49 Mall Drive P.O. Box 660501 Equipment
Commack, NY 11723 Dallas, TX 75266
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Citicorp Dealer Finance 05/23/2001 12/01/1992 9200021591 Washington, D.C. Specified
Holo-Krome Division 450 Mamaroneck Avenue Recorder of Deeds Equipment
Brook Street Harrison, NY 10528
West Hartford, CT 06110
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Citicorp Dealer Finance 05/23/2001 10/31/1997 9700017094 - Washington, D.C. Specified
Holo-Krome Division 450 Mamaroneck Avenue Continuation Recorder of Deeds Equipment
Brook Street Harrison, NY 10528
West Hartford, CT 06110
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Hyster Credit Co. 05/23/2001 01/22/1996 960000081 Washington, D.C. Specified
2900 City Lake Road P.O. Box 4366 Recorder of Deeds Equipment
Fayetteville, AR 72703 Portland, OR 97208
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation, General Electric Capital 05/23/2001 07/23/1997 970001139 Washington, D.C. AlliedSignal,
Danaher Tool Group Corporation Recorder of Deeds Inc.
Division (ALLIED) (50015001) accounts
1250 24th Street NW 55 Federal Road receivable
Washington, DC 20037 Danbury, CT 06810
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Caterpillar Financial Services 05/23/2001 08/20/1999 990001362 Washington, D.C. Specified
1250 24th Street Northwest Corporation Recorder of Deeds Equipment
Washington, DC 20037 1800 Parkway Place, Suite 820
Marietta, GA 30067
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Dana Commercial Credit 05/23/2001 11/28/2000 200010925 Washington, D.C. Specified
1250 24th Street NW Corporation Recorder of Deeds Equipment
Suite 800 660 Beaver Creek Circle
Washington, DC 20037 Maumee, OH 43537
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Citicorp Del Lease, Inc. 05/23/2001 12/05/2000 200011094 Washington, D.C. Specified
1250 24th Street Northwest 450 Mamaroneck Avenue Recorder of Deeds Equipment
Suite #8 Harrison, NY 10528
Washington, DC 20037
- ------------------------------------------------------------------------------------------------------------------------------------
7.01-4
Existing Liens
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Citicorp Del Lease, Inc. 05/23/2001 01/10/2001 200100323 Washington, D.C. Specified
1250 24th Street NW, 450 Mamaroneck Avenue Recorder of Deeds Equipment
Suite #800 Harrison, NY 10528
Washington, DC 20037
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Leasetec Corporation, Leasetec 05/23/2001 03/26/2001 200102880 Washington, D.C. Specified
1250 24th Street NW, Systems Credit Recorder of Deeds Equipment
Washington, DC 20037 54 State St., 4th Floor
P.O. Box 1339
Albany, NY 12201-1339
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation Citicorp Del Lease, Inc. 05/23/2001 04/16/2001 200103562 Washington, D.C. Specified
1250 24th Street NW, 450 Mamaroneck Avenue Recorder of Deeds Equipment
Suite #800 Harrison, NY 10528
Washington, DC 20037
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation SunTrust Bank Airplane
- ------------------------------------------------------------------------------------------------------------------------------------
Danaher Corporation No active filings on record 5/30/01 - Clear DE, Secretary of State
- ------------------------------------------------------------------------------------------------------------------------------------
DH Holdings Corp. No active filings on record 5/30/01 - Clear DE, Secretary of State
- ------------------------------------------------------------------------------------------------------------------------------------
Veeder-Root Company No active filings on record 5/30/01 - Clear DE, Secretary of State
- ------------------------------------------------------------------------------------------------------------------------------------
Joslyn Company, LLC No active filings on record 5/30/01 - Clear DE, Secretary of State
- ------------------------------------------------------------------------------------------------------------------------------------
Hach Company No active filings on record 5/30/01 - Clear DE, Secretary of State
- ------------------------------------------------------------------------------------------------------------------------------------
Easco Hand Tools, Inc. No active filings on record 5/30/01 - Clear DE, Secretary of State
- ------------------------------------------------------------------------------------------------------------------------------------
7.01-5
Existing Liens
SCHEDULE 10.02
EUROCURRENCY AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
DANAHER CORPORATION
Danaher Corporation
2099 Pennsylvania Avenue, N.W.
12/th/ Floor
Washington, D.C. 20006
Attn: Vice President and Controller
Telephone: 202-828-0850
Facsimile: 202-828-0860
Electronic Mail: chris.mcmahon@danaher.com
BANK OF AMERICA
Administrative Agent's Office and Bank of America's Lending Office
(for payments and Requests for Credit Extensions of Base Rate Loans/Payment
Instructions):
Bank of America, N.A.
Street Address: 101 North Tryon Street
Mail Code: NC1-001-15-04
City, State ZIP Code: Charlotte, NC 28205
Attention: Jennifer Thompson
Telephone: 704-388-1558
Facsimile: 704-409-0024
Electronic Mail: jennifer.g.thompson@bankofamerica.com
Account No.: 1366212250600
Ref: Danaher Corporation
ABA#: 053000196
Administrative Agent's Office and Bank of America's Lending Office
(for payments and Requests for Credit Extensions of Eurocurrency Rate Loans):
Bank of America, N.A.
Street Address: 101 North Tryon Street
Mail Code: NC1-001-15-04
City, State ZIP Code: Charlotte, NC 28205
Attention: Jennifer Thompson
Telephone: 704-388-1558
Facsimile: 704-409-0024
Electronic Mail: jennifer.g.thompson@bankofamerica.com
Account No.: 1366212250600
Ref: Danaher Corporation
ABA#: 053000196
10.02-1
Credit Agreement
Letter of Credit Issuer:
- -----------------------
Bank of America, N.A.
Trade Operations-Los Angeles #22621
333 S. Beaudry Avenue, 19th Floor
Mail Code: CA9-703-19-23
Los Angeles, CA 90017-1466
Attention: Sandra Leon
Vice President
Telephone: 213.345.5231
Facsimile: 213.345.6694
Electronic Mail: Sandra.Leon@bankofamerica.com
Other Notices as Administrative Agent:
- -------------------------------------
Bank of America, N.A.
335 Madison Avenue
New York, NY 10021
Attention: John Pocalyko
Managing Director
Telephone: 212-503-8340
Facsimile: 212-503-7066
Electronic Mail: john.pocalyko@bankofamerica.com
Other Notices as a Lender:
- -------------------------
Bank of America, N.A.
335 Madison Avenue
New York, NY 10021
Attention: John Pocalyko
Managing Director
Telephone: 212-503-8340
Facsimile: 212-503-7066
Electronic Mail: john.pocalyko@bankofamerica.com
Credit Agreement
10.02-2
THE BANK OF NOVA SCOTIA
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
The Bank of Nova Scotia
One Liberty Plaza - 24/th/ Floor
New York, NY 10006
Attn: Tilsa Cora
Team Leader
Telephone: 212-225-5044
Facsimile: 212-225-5145
The Bank of Nova Scotia
Attention: Loan Accounting
Ref: Danaher Corporation
ABA#: 026-002532
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
The Bank of Nova Scotia
One Liberty Plaza - 24/th/ Floor
New York, NY 10006
Attn: Tilsa Cora
Team Leader
Telephone: 212-225-5044
Facsimile: 212-225-5145
The Bank of Nova Scotia
Attention: Loan Accounting
Ref: Danaher Corporation
ABA#: 026-002532
Letter of Credit Payment Instructions:
- -------------------------------------
The Bank of Nova Scotia
Attention: Letters of Credit
Ref.: Danaher Corporation
ABA #: 026-002532
Credit Agreement
10.02-3
Notices (other than Requests for Credit Extensions):
- ---------------------------------------------------
Scotia Capital
One Liberty Plaza, 26/th/ Floor
New York, NY 11102
Attn: Tim Finneran
Director
Telephone: 212-225-5159
Facsimile: 212-225-5090
Electronic Mail: tfinnera@scotiacapital.com
--------------------------
Attn: Ben Sileo
Associate
Telephone: 212-225-5076
Facsimile: 212-225-5090
Electronic Mail: bsileo@scotiacapital.com
10.02-4
Credit Agreement
SUNTRUST BANK
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
SunTrust Bank
120 E. Baltimore Street, 24/th/ Floor
Baltimore, MD 21202
cc: SunTrust Bank
1001 Semmes Avenue
Richmond, VA 23224
Attn: Donna Bower
Telephone: 804-319-1732
Facsimile: 804-319-1736
SunTrust Bank
Richmond, VA
Monetary Department
Account No.: 9443129900
Ref: Danaher Corporation
ABA#: 051000020
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
SunTrust Bank
120 E. Baltimore Street, 24/th/ Floor
Baltimore, MD 21202
cc: SunTrust Bank
1001 Semmes Avenue
Richmond, VA 23224
Attn: Donna Bower
Telephone: 804-319-1732
Facsimile: 804-319-1736
SunTrust Bank
Richmond, VA
Monetary Department
Account No.: 9443129900
Ref: Danaher Corporation
ABA#: 051000020
Letter of Credit Payment Instructions:
- -------------------------------------
SunTrust Bank
Richmond, VA
Monetary Department
Account No.: 9443129900
Ref: Danaher Corporation
ABA#: 051000020
10.02-5
Credit Agreement
Notices (other than Requests for Credit Extensions):
- --------------------------------------------------
SunTrust Bank
120 E. Baltimore Street, 24/th/ Floor
Baltimore, MD 21202
Attn: Andrew J. Hines
Director
Telephone: 410-986-1827
Facsimile: 410-986-1571
Electronic Mail: Andrew.Hines@suntrust.com
10.02-6
Credit Agreement
WACHOVIA BANK, N.A.
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
Wachovia Bank, N.A.
191 Peachtree Street, 28/th/ Floor
Atlanta, GA 30303
cc: Wachovia Bank, N.A.
P.O. Box 2704
Winston-Salem, NC 27102-2704
Attn: Becky Sizemore
Telephone: 336-777-5037
Facsimile: 336-777-5692
Electronic Mail: Becky.sizemore@wachovia.com
Wachovia Bank, N.A.
Winston-Salem, NC
Account Name: Wire Suspence
Account No.: 8791-998539
Ref: Danaher
ABA#: 053100494
Attention: Global Corporate Re: Danaher
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
Wachovia Bank, N.A.
191 Peachtree Street, 28/th/ Floor
Atlanta, GA 30303
cc: Wachovia Bank, N.A.
P.O. Box 2704
Winston-Salem, NC 27102-2704
Attn: Becky Sizemore
Telephone: 336-777-5037
Facsimile: 336-777-5692
Electronic Mail: Becky.sizemore@wachovia.com
Wachovia Bank, N.A.
Winston-Salem, NC
Account Name: Wire Suspence
Account No.: 8791-998539
Ref: Danaher
ABA#: 053100494
Attention: Global Corporate Re: Danaher
Credit Agreement
10.02-7
Letter of Credit Payment Instructions:
- -------------------------------------
Wachovia Bank, N.A.
Account Name: [____ Funds Held in Trust]
Account No.: 8726800300
ABA #: 053100494
Attention: Brian Perryman
Notices (other than Requests for Credit Extensions):
- --------------------------------------------------
Wachovia Bank, N.A.
191 Peachtree Street, 28/th/ Floor
Atlanta, GA 30303
Attn: Meg Beveridge
Vice President
Telephone: 404-332-6576
Facsimile: 404-332-4058
Electronic Mail: Meg.beveridge@wachovia.com
10.02-8
Credit Agreement
THE CHASE MANHATTAN BANK
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
The Chase Manhattan Bank
1 Chase Manhattan Plaza - 8/th/ Floor
New York, NY 10081
Attn: Vito S. Cipriano
Account Manager
Telephone: 212-552-7402
Facsimile: 212-552-5662
Account No.: Commercial Loan Operations #9420
Ref: Danaher Corporation
ABA#: 021-000-021
Attention: Douglas Catron/Vicki Toler
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
The Chase Manhattan Bank
1 Chase Manhattan Plaza - 8/th/ Floor
New York, NY 10081
Attn: Vito S. Cipriano
Account Manager
Telephone: 212-552-7402
Facsimile: 212-552-5662
Account No.: Commercial Loan Operations #9420
Ref: Danaher Corporation
ABA#: 021-000-021
Attention: Douglas Catron/Vicki Toler
Letter of Credit Payment Instructions:
- -------------------------------------
The Chase Manhattan Bank
New York, NY
Letter of Credit Participation Unit
Account No.: 324-331-754
Ref: Danaher Corporation
Attention: Mildred Bowans
Notices (other than Requests for Credit Extensions):
- --------------------------------------------------
The Chase Manhattan Bank
270 Park Avenue, 47/th/ Floor
New York, NY 10017
Attn: Randolph Cates
Vice President
Telephone: 212-270-8997
Facsimile: 212-270-5120
Electronic Mail: Randolph.Cates@chase.com
10.02-9
Credit Agreement
THE NORTHERN TRUST COMPANY
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
The Northern Trust Company
50 S. LaSalle
Chicago, IL 60675
Attn: Ms. Linda Honda
Telephone: 312-444-3532
Facsimile: 312-630-1566
The Northern Trust Bank
Account No.: 5186401000
Credit to: Commercial Loan Department
Ref: Danaher Corporation
ABA#: 071000152
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
The Northern Trust Company
50 S. LaSalle
Chicago, IL 60675
Attn: Ms. Linda Honda
Telephone: 312-444-3532
Facsimile: 312-630-1566
The Northern Trust Bank
Account No.: 5186401000
Credit to: Commercial Loan Department
Ref: Danaher Corporation
ABA#: 071000152
Letter of Credit Payment Instructions:
- -------------------------------------
The Northern Trust Bank
Account No.: 5186401000
Credit to: Commercial Loan Department
Ref: Danaher Corporation
ABA#: 071000152
Notices (other than Requests for Credit Extensions):
- --------------------------------------------------
The Northern Trust Company
50 S. LaSalle, 11/th/ Floor
Chicago, IL 60675
Attn: Chris McKean
50 S. LaSalle, 11/th/ Floor
Chicago, IL 60675
Telephone: 312-557-2638
Facsimile: 312-444-5055
10.02-10
Credit Agreement
HSBC BANK USA
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
HSBC Bank USA
452 Fifth Avenue, 5/F
New York, NY 10018
cc: HSBC Bank USA
1 HSBC Center, 26/F
Buffalo, NY 14203
Attn: Donna Riley
Assistant Vice President
Telephone: 716-841-4178
Facsimile: 716-841-0269
Electronic Mail: donna.riley@us.hsbc.com
-----------------------
HSBC Bank USA
Buffalo, NY
Credit Syndication and Asset Group
Account No.: 001-940503
Ref: Danaher
ABA#: 021001088
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
HSBC Bank USA
452 Fifth Avenue, 5/F
New York, NY 10018
cc: HSBC Bank USA
1 HSBC Center, 26/F
Buffalo, NY 14203
Attn: Donna Riley
Assistant Vice President
Telephone: 716-841-4178
Facsimile: 716-841-0269
Electronic Mail: donna.riley@us.hsbc.com
-----------------------
HSBC Bank USA
Buffalo, NY
Credit Syndication and Asset Group
Account No.: 001-940503
Ref: Danaher
ABA#: 021001088
10.02-11
Credit Agreement
Letter of Credit Payment Instructions:
- -------------------------------------
HSBC Bank USA
Buffalo, NY
Credit Syndication and Asset Group
Account No.: 001-940503
Ref: Danaher
ABA#: 021001088
Notices (other than Requests for Credit Extensions):
- --------------------------------------------------
HSBC Bank USA
452 Fifth Avenue, 5/F
New York, NY 10018
Attn: Sarah McClintock
First Vice President
Telephone: 212-525-2485
Facsimile: 212-525-2479
Electronic Mail: sarah.mcclintock@us.hsbc.com
----------------------------
10.02.12
Credit Agreement
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi Trust Company
c/o BTM Information Services, Inc.
1251 Avenue of the Americas, 12/th/ Floor
New York, NY 10020-1104
Attn: Mr. Rolando Uy
AVP, Loan Operations Dept.
Telephone: 201-413-8570
Facsimile: 201-521-2304/201-521-2305
Bank of Tokyo-Mitsubishi, Ltd., NY Branch
Attention: Loan Operations Dept.
Account No.: 97770477
Ref: Danaher Corporation
ABA#: 0260-0963-2
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi Trust Company
c/o BTM Information Services, Inc.
1251 Avenue of the Americas, 12/th/ Floor
New York, NY 10020-1104
Attn: Mr. Rolando Uy
AVP, Loan Operations Dept.
Telephone: 201-413-8570
Facsimile: 201-521-2304/201-521-2305
Bank of Tokyo-Mitsubishi, Ltd., NY Branch
Attention: Loan Operations Dept.
Account No.: 97770477
Ref: Danaher Corporation
ABA#: 0260-0963-2
Letter of Credit Payment Instructions:
- -------------------------------------
Bank of Tokyo-Mitsubishi Trust Company
Attention: Loan Operations Dept.
Account No.: 97770477
Ref: Danaher Corporation
ABA#: 0260-0963-2
10.02-13
Credit Agreement
Notices (other than Requests for Credit Extensions):
- ---------------------------------------------------
The Bank of Tokyo-Mitsubishi Trust Company
1251 Avenue of the Americas, 12/th/ Floor
New York, NY 10020-1104
Attn: Pamela Donnelly
Telephone: 212-782-4378
Facsimile: 212-782-6440
Electronic Mail: pdonnelly@btmna.com
-------------------
Attn: Thomas Ho
Telephone: 212-782-4223
Facsimile: 212-782-6440
Electronic Mail: toho@btmna.com
10.02-14
Credit Agreement
CITIBANK, N.A.
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
Citibank, N.A.
388 Greenwich Street, 23/rd/ Floor
New York, NY 10013
cc: Citibank, N.A.
Two Pennsway, Suite 200
New Castle, DE 19720
Attn: Tony Neville
Assistant Manager
Telephone: 302-894-6057
Facsimile: 302-894-6120
Citibank, N.A.
N.Y., N.Y.
Account No.: 3042-4445
Account Name: Gen. Corp. Concentration Account
Ref: Danaher Corporation
ABA#: 021-000089
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
Citibank, N.A.
388 Greenwich Street, 23/rd/ Floor
New York, NY 10013
cc: Citibank, N.A.
Two Pennsway, Suite 200
New Castle, DE 19720
Attn: Tony Neville
Assistant Manager
Telephone: 302-894-6057
Facsimile: 302-894-6120
Citibank, N.A.
N.Y., N.Y.
Account No.: 3042-4445
Account Name: Gen. Corp. Concentration Account
Ref: Danaher Corporation
ABA#: 021-000089
10.02-15
Credit Agreement
Letter of Credit Payment Instructions:
- -------------------------------------
Citibank, N.A.
N.Y., N.Y.
Account No.: 3042-4445
Account Name: Gen. Corp. Concentration Account
Ref: Danaher Corporation
ABA#: 021-000089
Notices (other than Requests for Credit Extensions):
- --------------------------------------------------
Citibank, N.A.
388 Greenwich Street, 23/rd/ Floor
New York, NY 10013
Attn: Prakash M. Chonkar
Managing Director
Telephone: 212-816-5323
Facsimile: 212-816-5402
Electronic Mail: prakash.chonkar@citi.com
10.02-16
Credit Agreement
SANPAOLO IMI S.p.A.
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
SanPaolo IMI S.p.A.
245 Park Avenue, 35/th/ Floor
New York, NY 10167
Attn: Federica Bietta
Jr. Account Officer
Telephone: 212-692-3168
Facsimile: 212-692-3178
Electronic Mail: bietta@sanpaolony.com
Bank One International New York
NY, NY
Account Name: SanPaolo IMI Bank New York
Account No.: 1002209
Ref: Danaher Corporation
ABA#: 026009797
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
SanPaolo IMI S.p.A.
245 Park Avenue, 35/th/ Floor
New York, NY 10167
Attn: Federica Bietta
Jr. Account Officer
Telephone: 212-692-3168
Facsimile: 212-692-3178
Electronic Mail: bietta@sanpaolony.com
Bank One International New York
NY, NY
Account Name: SanPaolo IMI Bank New York
Account No.: 1002209
Ref: Danaher Corporation
ABA#: 026009797
Letter of Credit Payment Instructions:
- -------------------------------------
Bank One International New York
NY, NY
Account Name: SanPaolo IMI Bank New York
Account No.: 1002209
Ref: Danaher Corporation
ABA#: 026009797
10.02-17
Credit Agreement
Notices (other than Requests for Credit Extensions):
- ---------------------------------------------------
SanPaolo IMI S.p.A.
245 Park Avenue, 35/th/ Floor
New York, NY 10167
Attn: Luca Sacchi
Vice President
Telephone: 212-692-3130
Facsimile: 212-692-3178
Electronic Mail: sacchi@sanpaolony.com
10.02-18
Credit Agreement
BANK OF NEW YORK
Requests for Credit Extensions of Base Rate Loans/Payment Instructions:
- ----------------------------------------------------------------------
Bank of New York
1 Wall Street, 22/nd/ Floor
New York, NY 10286
Attn: Larry Geter
Telephone: 212-635-6740
Facsimile: 212-635-6399
Bank of New York
101 Barclay Street
New York, NY 10007
Commercial Loan Servicing Department
GLA #: 111-556
Ref: Danaher Corporation [Specify Interest, Principal, Reserves and the
Period]
ABA#: 021000018
Attention: Lorna Alleyne
Requests for Credit Extensions of Eurocurrency Rate Loans/Payment Instructions:
- ------------------------------------------------------------------------------
Bank of New York
1 Wall Street, 22/nd/ Floor
New York, NY 10286
Attn: Larry Geter
Telephone: 212-635-6740
Facsimile: 212-635-6399
The Bank of New York
101 Barclay Street
New York, NY 10007
Commercial Loan Servicing Department
GLA #: 111-556
Ref: Danaher Corporation [Specify Interest, Principal, Reserves and the
Period]
ABA#: 021000018
Attention: Lorna Alleyne
Letter of Credit Payment Instructions:
- -------------------------------------
Bank of New York
101 Barclay Street
New York, NY 10007
Trade Services
GLA #: 111-115
Ref: Danaher Corporation [Specify Fees and the Period]
ABA#: 021000018
Attention: Lorna Alleyne
10.02-19
Credit Agreement
Notices (other than Requests for Credit Extensions):
- --------------------------------------------------
Bank of New York
1 Wall Street, 22/nd/ Floor
New York, NY 10007
Attn: Steven Cavaluzzo
Vice President
Telephone: 212-635-1059
Facsimile: 212-635-6434
10.02-20
Credit Agreement
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June
28, 2001 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
---------
herein as therein defined), among Danaher Corporation, a Delaware corporation
(the "Borrower"), the Lenders from time to time party thereto, Banc of America
--------
Securities LLC, as a Co-Lead Arranger and the Sole Book Manager, The Bank of
Nova Scotia, as a Co-Lead Arranger, SunTrust Bank and Wachovia Bank, N.A., as
Co-Document Agents, and Bank of America, N.A., as Administrative Agent, Letter
of Credit Issuer and Swing Line Lender.
The undersigned hereby requests (select one):
[_] A Borrowing of Committed Loans [_] A conversion or continuation of
Committed Loans
1. On ________________________________________________(a Business Day).
2. In the amount of [$]___________[Euros] [Krona] [Sterling]. [The Dollar
Equivalent of such Committed Loans is $_________.]
3. Comprised of_______________________________________.
[Type of Committed Loan requested]
4. For Eurocurrency Rate Loans: with an Interest Period of________months.
[The Committed Borrowing requested herein complies with the proviso to
the first sentence of Section 2.01 of the Agreement.]
------------
DANAHER CORPORATION
By:____________________________
Name:
Title:
A-1
Form of Committed Loan Notice
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June
28, 2001(as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
---------
herein as therein defined), among Danaher Corporation, a Delaware corporation
(the "Borrower"), the Lenders from time to time party thereto, Banc of America
--------
Securities LLC, as a Co-Lead Arranger and the Sole Book Manager, The Bank of
Nova Scotia, as a Co-Lead Arranger, SunTrust Bank and Wachovia Bank, N.A., as
Co-Document Agents, and Bank of America, N.A., as Administrative Agent, Letter
of Credit Issuer and Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On___________________________________________(a Business Day).
2. In the amount of $___________________________.
The Swing Line Borrowing requested herein complies with the
requirements of the proviso to the first sentence of Section 2.05(a) of the
---------------
Agreement.
DANAHER CORPORATION
By:_____________________________
Name:
Title:
B-1
Form of Swing Line Loan Notice
EXHIBIT C
FORM OF COMMITTED LOAN NOTE
$_______________________ _____________________
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
--------
to pay to the order of _____________________________ (the "Lender"), on the
------
Maturity Date (as defined in the Credit Agreement referred to below) the
principal amount of _________________ Dollars ($____________), or such lesser
principal amount of outstanding Committed Loans (as defined in such Credit
Agreement), in the applicable Committed Currency due and payable by the Borrower
to the Lender on the Maturity Date under that certain Credit Agreement, dated as
of June 28, 2001 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
---------
therein being used herein as therein defined), among the Borrower, the Lenders
from time to time party thereto, Banc of America Securities LLC, as a Co-Lead
Arranger and the Sole Book Manager, The Bank of Nova Scotia, as a Co-Lead
Arranger, SunTrust Bank and Wachovia Bank, N.A., as Co-Document Agents, and Bank
of America, N.A., as Administrative Agent, Letter of Credit Issuer and Swing
Line Lender.
The Borrower promises to pay interest on the unpaid principal amount
of each Committed Loan from the date of such Committed Loan until such principal
amount is paid in full, at such interest rates, and at such times as are
specified in the Agreement. All payments of principal and interest shall be
made to the Administrative Agent for the account of the Lender in the
applicable Committed Currency in immediately available funds at the
Administrative Agent's Office. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) computed at the per annum rate set forth in the Agreement.
This Note is one of the Committed Loan Notes referred to in the
Agreement, is entitled to the benefits thereof and is subject to optional and
mandatory prepayment in whole or in part as provided therein. The Agreement
contains provisions for determining the Dollar Equivalent of Committed Loans
denominated in a Foreign Currency. This Note is also entitled to the benefits
of the other Loan Documents. Upon the occurrence of one or more of the Events
of Default specified in the Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Committed Loans made by the Lender shall be
evidenced by one or more loan accounts or records maintained by the Lender in
the ordinary course of business. The Lender may also attach schedules to this
Note and endorse thereon the date, amount and maturity of its Committed Loans
and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
C-1
Form of Committed Loan Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
DANAHER CORPORATION
By:___________________________
Name:
Title:
C-2
Form of Committed Loan Note
COMMITTED LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of
Loan Made Amount of
(Specify Principal or Outstanding
Applicable End of Interest Principal
Type of Committed Interest Paid This Balance Notation
Date Loan Made Currency) Period Date This Date Made By
- -----------------------------------------------------------------------------------------------
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C-3
Form of Committed Loan Note
EXHIBIT D
FORM OF SWING LINE NOTE
$____ _____
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises
--------
to pay to the order of _________________________ ("Swing Line Lender"), on the
-----------------
date when due in accordance with the Credit Agreement referred to below, the
aggregate principal amount of each Swing Line Loan from time to time made by the
Swing Line Lender to the Borrower under that certain Credit Agreement, dated as
of June 28, 2001 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
---------
therein being used herein as therein defined), among the Borrower, the Lenders
from time to time party thereto, Banc of America Securities LLC, as a Co-Lead
Arranger and the Sole Book Manager, The Bank of Nova Scotia, as a Co-Lead
Arranger, SunTrust Bank and Wachovia Bank, N.A., as Co-Document Agents, and Bank
of America, N.A., as Administrative Agent, Letter of Credit Issuer and Swing
Line Lender.
The Borrower promises to pay interest on the unpaid principal amount
of each Swing Line Loan from the date of such Swing Line Loan until such
principal amount is paid in full, at such interest rates and at such times as
provided in the Agreement.
All payments of principal and interest shall be made to the Swing Line
Lender in Dollars in immediately available funds at its Lending Office.
If any amount is not paid in full when due hereunder, such unpaid
amount shall bear interest, to be paid upon demand, from the due date thereof
until the date of actual payment (and before as well as after judgment) computed
at the per annum rate set forth in the Agreement.
This Note is the Swing Line Note referred to in the Agreement, is
entitled to the benefits thereof and is subject to optional prepayment in whole
or in part as provided therein. This Note is also entitled to the benefits of
the other Loan Documents. Upon the occurrence of one or more of the Events of
Default specified in the Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Agreement. Swing Line Loans made by the Swing Line Lender shall
be evidenced by one or more loan accounts or records maintained by Swing Line
Lender in the ordinary course of business. The Swing Line Lender may also
attach schedules to this Note and endorse thereon the date, amount and maturity
of the Swing Line Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
D-1
Form of Swing Line Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
DANAHER CORPORATION
By:_________________________
Name:
Title:
D-2
Form of Swing Line Note
SWING LINE LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of
Principal or
Amount of Loan Interest Paid This Outstanding Principal
Date Made Date Balance This Date Notation Made By
- -----------------------------------------------------------------------------------------------------
---------- ---------------- --------------------- ----------------------- ------------------
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D-3
Form of Swing Line Note
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____________, ___
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June
28, 2001 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "Agreement;" the terms defined therein being used
---------
herein as therein defined), among Danaher Corporation, a Delaware corporation
(the "Borrower"), the Lenders from time to time party thereto, Banc of America
--------
Securities LLC, as a Co-Lead Arranger and the Sole Book Manager, The Bank of
Nova Scotia, as a Co-Lead Arranger, SunTrust Bank and Wachovia Bank, N.A., as
Co-Document Agents, and Bank of America, N.A., as Administrative Agent, Letter
of Credit Issuer and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the ___________________________________ of the Borrower,
and that, as such, he/she is authorized to execute and deliver this Certificate
to the Administrative Agent on the behalf of the Borrower, and that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
----------
statements required by Section 6.01(a) of the Agreement for the fiscal year of
---------------
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial
----------
statements required by Section 6.01(b) of the Agreement for the fiscal quarter
---------------
of the Borrower ended as of the above date. Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal
period has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
E-1
Form of Compliance Certificate
[select one:]
[to the best knowledge of the undersigned during such fiscal period,
the Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default
and its nature and status:]
4. The financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ________________, _____________________.
DANAHER CORPORATION
By:____________________________________
Name:
Title:
E-2
Form of Compliance Certificate
For the Quarter/Year ended ___________________("Statement Date")
--------------
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. Section 7.06 - Leverage Ratio.
A. Consolidated Funded Debt at Statement Date: $_____
B. Shareholders Equity at Statement Date: $_____
C. Leverage Ratio (Line I.A / sum of Line I.A. plus Line I.B): ________ to 1
----
Maximum permitted: 0.575:1
E-3
Form of Compliance Certificate
EXHIBIT F
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this "Assignment") is dated
----------
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
--------
"Assignee"). Capitalized terms used but not defined herein shall have the
--------
meanings given to them in the Credit Agreement identified below (the "Credit
------
Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee.
- ---------
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below, the interest in and to all of
the Assignor's rights and obligations under the Credit Agreement and any other
documents or instruments delivered pursuant thereto that represents the amount
and percentage interest identified below of all of the Assignor's outstanding
rights and obligations under the respective facilities identified below
(including, to the extent included in any such facilities, Letters of Credit and
Swing Line Loans) (the "Assigned Interest"). Such sale and assignment is
-----------------
without recourse to the Assignor and, except as expressly provided in this
Assignment, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund]
3. Borrower: Danaher Corporation
4. Administrative Agent: Bank of America, N.A., as the administrative
agent under the Credit Agreement
5. Credit Agreement: Credit Agreement, dated as of June 28, 2001, among
Danaher Corporation, the Lenders parties thereto, Bank of America,
N.A., as Administrative Agent, SunTrust Bank and Wachovia Bank, N.A.,
as Co-Documentation Agents, The Bank of Nova Scotia, as a Co-Lead
Arranger ,and Banc of America Securities LLC, as a Co-Lead Arranger and
as the Sole Book Manager.
F-1
Form of Assignment and Assumption Agreement
6. Assigned Interest:
- ------------------------------------------------------------------------------------------------------------------------------------
Aggregate
Amount of Amount of Percentage
Commitment/Loans
for all Lenders Commitment/Loans Assigned of
Facility Assigned --------------- Assigned Commitment/Loans*
----------------- ---------------- -----------------
- -------------------------------------------------------------------------------------------------------------------------------
Committed Loans $_______________ $_______________ $_____________ %
- -------------------------------------------------------------------------------------------------------------------------------
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]
The terms set forth in this Assignment are hereby agreed to:
ASSIGNOR
--------
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
--------
[NAME OF ASSIGNEE]
By: _____________________________
Title:
Consented to and Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________________
Title:
[Consented to:
DANAHER CORPORATION
By: _________________________________
Title:]
_______________________________________
* Set forth, to at least 9 decimals, as a percentage of the
Commitment/Loans of all Lenders thereunder.
F-2
Form of Assignment and Assumption Agreement
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT
AND ASSUMPTION AGREEMENT
1. Representations and Warranties.
------------------------------
1.1. Assignor. The Assignor (a) represents and warrants that (i) it
--------
is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with any
Credit Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document delivered pursuant thereto, other than this Assignment
(herein collectively the "Credit Documents"), or any collateral thereunder,
----------------
(iii) the financial condition of the Borrower, any of its Subsidiaries or
Affiliates or any other Person obligated in respect of any Credit Document or
(iv) the performance or observance by the Borrower, any of its Subsidiaries or
Affiliates or any other Person of any of their respective obligations under any
Credit Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it
--------
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby
and to become a Lender under the Credit Agreement, (ii) it meets all
requirements of an Eligible Assignee under the Credit Agreement, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 6.01 thereof, as applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and to purchase the Assigned
Interest on the basis of which it has made such analysis and decision, and (v)
if it is a Foreign Lender, attached hereto is any documentation required to be
delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by the Assignee; and (b) agrees that (i) it will, independently and
without reliance on the Administrative Agent, the Assignor 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 the Credit Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Documents are
required to be performed by it as a Lender.
1.3 Assignee's Address for Notices, etc. Attached hereto as Schedule
------------------------------------
1 is all contact information, address, account and other administrative
information relating to the Assignee.
2. Payments. From and after the Effective Date, the Administrative
--------
Agent shall make all payments in respect of the Assigned interest (including
payments of principal, interest, fees and other amounts) to the Assignee whether
such amounts have accrued prior to or on or after the Effective Date. The
Assignor and the Assignee shall make all appropriate
F-3
Form of Assignment and Assumption Agreement
adjustments in payments by the Administrative Agent for periods prior to the
Effective Date or with respect to the making of this assignment directly between
themselves.
3. General Provisions. This Assignment shall be binding upon, and
------------------
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment may be executed in any number of counterparts, which
together shall constitute one instrument. Delivery of an executed counterpart of
a signature page of this Assignment by telecopy shall be effective as delivery
of a manually executed counterpart of this Assignment. This Assignment shall be
governed by, and construed in accordance with, the law of the State of New York.
F-4
Form of Assignment and Assumption Agreement
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION AGREEMENT
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
F-5
Form of Assignment and Assumption Agreement
EXHIBIT G
FORM OF OPINION OF COUNSEL
June __, 2001
To each of the Lenders and the Agents parties
to the Credit Agreement referred to below
Danaher Corporation
-------------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 4.01(a)(viii) of
the Credit Agreement, dated as of the date hereof (the "Credit Agreement"),
----------------
among Danaher Corporation, a Delaware corporation (the "Borrower"), the Lenders
--------
parties thereto, Bank of America Securities LLC, as a co-lead arranger and the
sole book manager, The Bank of Nova Scotia, as a co-lead arranger, SunTrust Bank
and Wachovia Bank, N.A., as co-documentation agents, and Bank of America, N.A.,
as administrative agent for said Lenders (in such capacity, together with such
other agents, the "Agents"). Terms defined in the Credit Agreement are used
------
herein as therein defined.
We have acted as special counsel for the Borrower in connection with
the preparation, execution and delivery of the Credit Agreement. In that
connection, we have examined:
(a) the Credit Agreement;
(b) the documents furnished by the Borrower pursuant to Section 4.01
of the Credit Agreement;
(c) the Certificate of Incorporation of the Borrower and all
amendments thereto (the "Charter");
-------
(d) the by-laws of the Borrower and all amendments thereto (the "By-
--
laws"); and
----
(e) a certificate of the Secretary of State of Delaware dated June
__, 2001, attesting to the continued corporate existence and good standing
of the Borrower in that State.
G-1
Form of Opinion of Counsel
We have also examined the originals, or copies certified to our
satisfaction, of the documents listed in a certificate of the chief financial
officer of the Borrower, dated the date hereof (the "Certificate"), certifying
-----------
that the documents listed in such certificate are all of the indentures, loan or
credit agreements, leases, guarantees, mortgages, security agreements, bonds,
notes and other agreements or instruments, in each case, only to the extent
involving principal amounts or aggregate annual payments thereunder of more than
the Threshold Amount (the "Material Agreements"), and all of the orders, writs,
judgments, awards, injunctions and decrees, that affect or purport to affect the
Borrower's right to borrow money or the Borrower's obligations under the Credit
Agreement or the Notes. In addition, we have examined the originals, or copies
certified to our satisfaction, of such other corporate records of the Borrower,
certificates of public officials and of officers of the Borrower, and
agreements, instruments and other documents, as we have deemed necessary as a
basis for the opinions expressed below. As to questions of fact material to such
opinions, we have, when relevant facts were not independently established by us,
relied upon certificates of the Borrower or its officers or of public officials.
We have assumed, without independent inquiry, (i) the due execution and
delivery, pursuant to due authorization, of the Credit Agreement by the Lenders
and the Administrative Agent; (ii) the authenticity of all documents submitted
to us as originals; (iii) the legal capacity of all natural persons; and (iv)
the conformity to the originals of all documents submitted to us as copies.
Whenever our opinion herein with respect to the existence or absence
of facts is indicated to be based on our knowledge or awareness or the
expression "known to us" is used, it is intended to signify that, during the
course of our representation of the Borrower as herein described, no information
has come to the attention of the attorneys representing the Borrower
inconsistent with such opinion. We have not undertaken any independent
investigation or inquiry, however, to determine the existence or absence of such
facts, and no inference as to our knowledge of the existence or absence of such
facts should be drawn from our representation of the Borrower.
Our opinions expressed below are limited to the law of the State of
New York, the General Corporation Law of the State of Delaware and the Federal
law of the United States.
Based upon the foregoing and upon such investigation as we have deemed
necessary, we are of the following opinion:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware.
2. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes, and the consummation of the transactions
contemplated thereby, are within the Borrower's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene
(i) the Charter or the By-laws or (ii) any law, rule or regulation known to
us applicable to the Borrower (including, without limitation, Regulation G,
U or X of the Board of Governors of the Federal Reserve System) or (iii)
any contractual or legal restriction contained in any Material Agreement
listed in the Certificate. Our opinion expressed in the foregoing sentence
does not extend to compliance by the Borrower with any financial ratio,
limitation
G-2
Form of Opinion of Counsel
expressed as a dollar amount or restricted payments test. The Credit
Agreement and the Notes have been duly executed and delivered on behalf of
the Borrower.
3. Except for any consents, authorizations, approvals, notices and
filings (including all those required under the Material Agreements, if
any) that have been obtained or made, no authorization, approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body or any other third party is required for the due execution,
delivery and performance by the Borrower of the Credit Agreement and the
Notes.
4. The Credit Agreement is, and after giving effect to the initial
Borrowing, the Notes will be, legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their
respective terms.
5. To the best of our knowledge, there are no pending or overtly
threatened actions or proceedings against the Borrower before any court,
governmental agency or arbitrator that purport to affect the legality,
validity, binding effect or enforceability of the Credit Agreement or any
of the Notes or the consummation of the transactions contemplated thereby.
The opinions set forth above are subject to the following
qualifications:
(a) our opinion in paragraph 4 above as to enforceability is subject
to the effect of any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar law affecting creditors' rights generally;
(b) our opinion in paragraph 4 above as to enforceability is subject
to the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at
law, including the exercise of discretionary powers by any court before
which specific performance, injunctive relief or other equitable remedies
may be sought); and
(c) we express no opinion as to (i) Section 10.09 of the Credit
Agreement insofar as it provides that any Lender purchasing a participation
from another Lender pursuant thereto may exercise set-off or similar rights
with respect to such participation; (ii) Section 10.17 of the Credit
Agreement, insofar as such provision relates to the subject matter
jurisdiction of the United States District Court for the Southern District
of New York to adjudicate any controversy; (iii) the waiver of inconvenient
forum set forth in Section 10.17 of the Credit Agreement; (iv) Section
10.01 of the Credit Agreement, insofar as such provision provides that any
amendments, modifications or waivers thereof may only be in writing; and
(v) the effect of the law of any jurisdiction other than the State of New
York wherein any Lender may be located or wherein enforcement of the Credit
Agreement or the Notes may be sought that limits the rates of interest
legally chargeable or collectible.
G-3
Form of Opinion of Counsel
This opinion is solely for your benefit in connection with the
referenced transaction and may not be quoted or relied on by any other
person (except your successors and permitted assignees), nor may copies be
delivered to any other person except for any regulatory authority,
commission, or other entity with regulatory jurisdiction over you, provided
such delivery is required by law, regulation, or regulatory policy
applicable to you, nor may this opinion be used for any other purpose,
without our prior written consent.
Very truly yours,
G-4
Form of Opinion of Counsel