SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q
(Mark one)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1998
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
----------------------- --------------------
Commission file number 001-12277
ACNIELSEN CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 06-1454128
- - ------------------------------------- ------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
177 Broad Street, Stamford, CT 06901
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (203) 961-3000
-------------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Sections 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
Shares Outstanding
Title of Class at July 31, 1998
Common Stock,
par value $.01 per share 57,117,645
<PAGE>
ACNIELSEN CORPORATION
INDEX TO FORM 10-Q
PART I. FINANCIAL INFORMATION PAGE
Item 1. Financial Statements
Condensed Consolidated Statements of Income (Unaudited) 3
Three Months Ended June 30, 1998 and 1997
Condensed Consolidated Statements of Income (Unaudited) 4
Six Months Ended June 30, 1998 and 1997
Condensed Consolidated Statements of Cash Flows (Unaudited) 5
Six Months Ended June 30, 1998 and 1997
Condensed Consolidated Balance Sheets 6
June 30, 1998 (Unaudited) and December 31, 1997
Notes to Condensed Consolidated Financial Statements (Unaudited) 7
Item 2. Management's Discussion and Analysis of Financial 12
Condition and Results of Operations
PART II. OTHER INFORMATION
Item 4. Submission of matters to a vote of Security Holders 16
Item 6. Exhibits and Reports on Form 8-K 17
SIGNATURES 18
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<PAGE>
<TABLE>
PART I. FINANCIAL INFORMATION
Item I. FINANCIAL STATEMENTS
ACNIELSEN CORPORATION
Condensed Consolidated Statements Of Income (Unaudited)
(Amounts in thousands except per share amounts)
<CAPTION>
Three Months Ended
June 30,
--------------------------------------------
1998 1997
----------------------- -----------------
<S> <C> <C>
Operating Revenue $ 346,495 $ 356,325
Operating Costs 163,608 184,599
Selling and Administrative Expenses 133,307 130,011
Depreciation and Amortization 20,959 23,058
Year 2000 Expenses 2,701 -
----------------- -----------------
Operating Income 25,920 18,657
Interest Income 2,342 1,021
Interest Expense (317) (384)
Other - Net (207) (315)
----------------- -----------------
Other Income - Net 1,818 322
Income Before Income Tax Provision 27,738 18,979
Income Tax Provision 11,650 8,730
----------------- -----------------
Net Income $ 16,088 $ 10,249
================= =================
Net Income Per Share of Common Stock - Basic $ 0.28 $ 0.18
================= =================
Net Income Per Share of Common Stock - Diluted $ 0.27 $ 0.18
================= =================
Weighted Average Number of Shares Outstanding
Basic 57,281 57,035
Diluted 59,670 57,536
<FN>
See accompanying notes to the condensed consolidated financial statements
(unaudited).
</FN>
</TABLE>
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<PAGE>
<TABLE>
PART I. FINANCIAL INFORMATION
Item I. FINANCIAL STATEMENTS
ACNIELSEN CORPORATION
Condensed Consolidated Statements Of Income (Unaudited)
(Amounts in thousands except per share amounts)
<CAPTION>
Six Months Ended
June 30,
--------------------------------------------
1998 1997
----------------------- -----------------
<S> <C> <C>
Operating Revenue $ 672,296 $ 681,099
Operating Costs 335,582 366,700
Selling and Administrative Expenses 262,183 258,013
Depreciation and Amortization 42,370 46,907
Year 2000 Expenses 6,037 -
----------------- -----------------
Operating Income 26,124 9,479
Interest Income 5,423 3,052
Interest Expense (601) (1,685)
Other - Net (106) 511
----------------- -----------------
Other Income - Net 4,716 1,878
Income Before Income Tax Provision 30,840 11,357
Income Tax Provision 12,953 5,224
----------------- -----------------
Net Income $ 17,887 $ 6,133
================= =================
Net Income Per Share of Common Stock - Basic $ 0.31 $ 0.11
================= =================
Net Income Per Share of Common Stock - Diluted $ 0.30 $ 0.11
================= =================
Weighted Average Number of Shares Outstanding
Basic 57,319 56,977
Diluted 59,604 57,313
<FN>
See accompanying notes to the condensed consolidated financial statements
(unaudited).
</FN>
</TABLE>
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<PAGE>
<TABLE>
ACNIELSEN CORPORATION
Condensed Consolidated Statements of Cash Flows (Unaudited)
(Amounts in Thousands)
<CAPTION>
Six Months Ended
June 30,
-----------------------------------------------
1998 1997
-----------------------------------------------
- - -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash Flows from Operating Activities:
Net Income $ 17,887 $ 6,133
Reconciliation of Net Income to Net Cash Provided By
Operating Activities:
Depreciation and Amortization 42,370 46,907
Deferred Income Taxes 205 2,846
Payments Related to Special Charges (15,162) (21,157)
Postemployment Benefit Expense 1,923 227
Postemployment Benefit Payments (6,879) (5,718)
Net Increase in Accounts Receivable (14,769) (4,082)
Net Increase in Other Working Capital Items (3,589) (26,667)
Other (1,472) 4,552
- - ----------------------------------------------------------------------------------------------------------------
Net Cash Provided by Operating Activities 20,514 3,041
- - ----------------------------------------------------------------------------------------------------------------
Cash Flows from Investing Activities:
Capital Expenditures (19,551) (20,827)
Additions to Computer Software (11,535) (6,719)
Payments for Acquisition of Businesses (68,360) (5,082)
Decrease in Other Investments 1,931 1,800
Other (11,189) (9,788)
- - ----------------------------------------------------------------------------------------------------------------
Net Cash Used in Investing Activities (108,704) (40,616)
- - ----------------------------------------------------------------------------------------------------------------
Cash Flows from Financing Activities:
Increase (Decrease) in Short-Term Borrowings 20,797 (10,347)
Treasury Stock Purchases (21,517) -
Proceeds from the Sale of Common Stock under Option Plans 7,035 1,613
Other (142) 222
- - ----------------------------------------------------------------------------------------------------------------
Net Cash Provided by (Used in) Financing Activities 6,173 (8,512)
- - ----------------------------------------------------------------------------------------------------------------
Effect of Exchange Rate Changes on Cash and Cash Equivalents (4,380) (5,171)
- - ----------------------------------------------------------------------------------------------------------------
Decrease in Cash and Cash Equivalents (86,397) (51,258)
Cash and Cash Equivalents, Beginning of Period 205,726 185,005
- - ----------------------------------------------------------------------------------------------------------------
Cash and Cash Equivalents, End of Period $ 119,329 $ 133,747
- - ----------------------------------------------------------------------------------------------------------------
Supplemental disclosure of cash flow information:
Cash Paid During the Period for Interest $ 609 $ 1,751
Cash Paid During the Period for Income Taxes $ 13,778 $ 19,562
Noncash Investing and Financing Activities:
Acquisition of Investment and Note Receivable in exchange for $ 19,400 -
Business Assets and Liabilities assumed
<FN>
See accompanying notes to the condensed consolidated financial statements
(unaudited).
</FN>
</TABLE>
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<PAGE>
<TABLE>
ACNIELSEN CORPORATION
Condensed Consolidated Balance Sheets
(Amounts in thousands)
<CAPTION>
- - --------------------------------------------------------------------------------------------------------------------------
June 30, December 31,
1998 1997
(Unaudited)
- - --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Assets
Current Assets
Cash and Cash Equivalents $ 119,329 $ 205,726
Accounts Receivable-Net 267,373 260,821
Other Current Assets 48,598 38,423
----------------- -------------
Total Current Assets 435,300 504,970
Notes Receivable and Other Investments 28,181 10,281
Property, Plant and Equipment-Net 146,817 165,660
Other Assets-Net
Prepaid Pension 58,685 57,425
Computer Software 28,302 25,288
Intangibles & Other Assets 56,593 55,001
Goodwill 275,025 220,483
----------------- -------------
Total Other Assets-Net 418,605 358,197
- - --------------------------------------------------------------------------------------------------------------------------
TOTAL ASSETS $ 1,028,903 $ 1,039,108
- - --------------------------------------------------------------------------------------------------------------------------
Liabilities and Shareholders' Equity
Current Liabilities
Accounts Payable $ 77,352 $ 86,908
Short-Term Debt 45,358 25,957
Accrued and Other Current Liabilities 314,956 313,864
Accrued Income Taxes 39,513 42,385
----------------- -------------
Total Current Liabilities 477,179 469,114
Postretirement and Postemployment Benefits 45,757 49,400
Deferred Income Taxes 27,129 27,609
Other Liabilities 25,769 32,881
- - --------------------------------------------------------------------------------------------------------------------------
TOTAL LIABILITIES 575,834 579,004
- - --------------------------------------------------------------------------------------------------------------------------
Commitments and Contingencies
Shareholders' Equity
Common Stock 583 577
Additional Paid-in Capital 481,751 471,493
Retained Earnings 61,507 43,620
Treasury Stock (25,483) (3,966)
Accumulated Other Comprehensive Income:
Cumulative Translation Adjustment (65,289) (51,620)
----------------- -------------
Total Shareholders' Equity 453,069 460,104
- - --------------------------------------------------------------------------------------------------------------------------
TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY $ 1,028,903 $ 1,039,108
- - --------------------------------------------------------------------------------------------------------------------------
<FN>
See accompanying notes to the condensed consolidated financial statements
(unaudited).
</FN>
</TABLE>
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<PAGE>
ACNIELSEN CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Amounts in thousands, except per share data) (Unaudited)
Note 1 - Interim Consolidated Financial Statements
These interim consolidated financial statements have been prepared in accordance
with the instructions to Form 10-Q and should be read in conjunction with the
consolidated financial statements and related notes in the ACNielsen Corporation
(the "Company") 1997 Annual Report on Form 10-K. In the opinion of management,
all adjustments (which include only normal recurring adjustments), considered
necessary for a fair presentation of financial position, results of operations
and cash flows at the dates and for the periods presented have been included.
Certain prior year amounts have been reclassified to conform with the 1998
presentation.
Note 2 - Financial Instruments with Off-Balance-Sheet Risk
The Company uses foreign exchange forward contracts to hedge significant known
transactional exposures. At June 30, 1998 the Company had $21,583 of foreign
currency forward contracts outstanding, which mature on various dates over the
next six months. These forward contracts mature in monthly installments through
December 31, 1998. Any gain or loss on the forward contract is deferred and
included in the measurement of the related foreign currency transaction.
The Company does not utilize derivative financial instruments for trading or
other speculative purposes.
Note 3 - Earnings Per Share
The following table sets forth the computation of basic and diluted earnings per
share (EPS) for the respective periods:
<TABLE>
<CAPTION>
Three months ended June 30 1998 1997
- - ------------------------------------------------------------------------------ -------------- ---------------
<S> <C> <C>
Weighted-average number of shares outstanding for basic EPS 57,281 57,035
Dilutive effect of shares issuable as of period-end under stock option
plans 2,389 501
-------------- ---------------
Weighted-average number of shares and share equivalents for diluted EPS
59,670 57,536
============== ===============
============== ===============
Net Income $ 16,088 $ 10,249
============== ===============
============== ===============
Basic Earnings Per Share $ 0.28 $ 0.18
============== ===============
Diluted Earnings Per Share $ 0.27 $ 0.18
============== ===============
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Six months ended June 30 1998 1997
- - ------------------------------------------------------------------------------ --------------- --------------
<S> <C> <C>
Weighted-average number of shares outstanding for basic EPS 57,319 56,977
Dilutive effect of shares issuable as of period-end under stock option
plans 2,285 336
============== ===============
Weighted-average number of shares and share equivalents for diluted EPS
59,604 57,313
============== ===============
Net Income $ 17,887 $ 6,133
============== ===============
Basic Earnings Per Share $ 0.31 $ 0.11
============== ===============
============== ===============
Diluted Earnings Per Share $ .30 $ 0.11
============== ===============
</TABLE>
Note 4 - Acquisition
On June 30, 1998, the Company acquired BBI Marketing Services, Inc. ("BASES"), a
provider of simulated test-marketing services. The Company paid $65,000 and may
be required to make additional cash payments if BASES achieves certain operating
goals. The maximum amount of contingent consideration is approximately $36,000
(payable through 2001).
The purchase price allocations have been prepared on a preliminary basis and
changes are expected as evaluations of assets and liabilities are completed and
as additional information becomes available. Pending the receipt of additional
information, the purchase price of $65,000 has been recorded as goodwill in the
accompanying condensed consolidated balance sheet as of June 30, 1998.
If BASES had been acquired on January 1, 1997, this acquisition would not have
had a material impact on the Company's consolidated results of operations for
any of the periods presented.
Note 5 - Bank Credit Line
In April 1998, the Company replaced its existing $125,000 bank credit facility
with a new $250,000 bank credit facility. The new credit facility, which is
provided by a global bank syndicate comprising twelve banks, is unsecured and
has a three-year term. The new credit facility includes subfacilities for
borrowings in foreign currencies and for the issuance of letters of credit. The
base interest rates applicable to borrowings may be fixed or various floating
rates, depending on the type and currency of the borrowing. Interest spreads and
fees are based upon the Company's fixed charge coverage ratio for the preceding
four quarters. The terms of the credit agreement contain, among other things,
limitations on debt of the Company and its subsidiaries and financial covenants
requiring the Company to maintain compliance with a minimum fixed charge
coverage ratio requirement and a maximum leverage ratio requirement. At June 30,
1998, approximately $41,600 was outstanding under the new credit facility. There
are no compensating balance requirements or material commitment fees associated
with the new credit facility.
-8-
<PAGE>
Note 6 - New Accounting Pronouncements
The Company has adopted Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income", which establishes standards for the reporting
and disclosure of comprehensive income and its components in the financial
statements. This statement is effective for interim and annual periods for
fiscal years beginning after December 15,1997. The Company's comprehensive
income for the respective periods, reported net of tax, are set forth in the
following table:
<TABLE>
<CAPTION>
Three months ended June 30 1998 1997
- - ------------------------------------------------------------------- ------------ -----------
<S> <C> <C>
Net Income $ 16,088 $ 10,249
Other comprehensive loss, net of tax:
Foreign currency translation adjustments (3,363) (3,296)
Unrealized gain on securities - 16,443
----------- -----------
Comprehensive income $ 12,725 $ 23,396
============== ============
</TABLE>
<TABLE>
<CAPTION>
Six months ended June 30 1998 1997
- - ------------------------------------------------------------------- ---------------- ---------------
<S> <C> <C>
Net Income $ 17,887 $ 6,133
Other comprehensive income (loss), net of tax:
Foreign currency translation adjustments (13,669) (12,179)
Unrealized gain on securities - 15,451
----------- ------------
Comprehensive income $ 4,218 $ 9,405
================= ==============
</TABLE>
In April 1998, the American Institute of Certified Public Accountants issued
Statement of Position (SOP) 98-5, "Reporting on the Costs of Start-Up
Activities." The SOP, which the Company plans to adopt on January 1, 1999,
requires that costs of the Company's start-up activities be expensed as
incurred. The Company currently capitalizes certain one-time costs related to
introducing new services and conducting business in new geographic areas.
Adoption of this SOP is expected to result in a one-time, non-cash, after-tax
charge recorded as a cumulative effect of a change in accounting in the range of
$15,000 to $20,000. However, adoption of the new accounting policy is not
expected to have a material impact on the Company's future results of
operations.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities". The Statement establishes accounting and reporting
standards requiring that every derivative instrument (including certain
derivative instruments embedded in other contracts) be recorded in the balance
sheet as either an asset or liability measured at its fair value. The Statement
requires that changes in the derivative's fair value be recognized currently in
earnings unless specific hedge accounting criteria are met. Special accounting
for qualifying hedges allows a derivative's gains and losses to offset related
results on the hedged item in the income statement, and requires that a company
must formally document, designate, and assess the effectiveness of transactions
that receive hedge accounting.
-9-
<PAGE>
Statement 133 is effective for fiscal years beginning after June 15, 1999. A
company may also implement the Statement as of the beginning of any fiscal
quarter after issuance (that is, fiscal quarters beginning June 16, 1998 and
thereafter). Statement 133 cannot be applied retroactively. Statement 133 must
be applied to (a) derivative instruments and (b) certain derivative instruments
embedded in hybrid contracts that were issued, acquired, or substantively
modified after December 31, 1997 (and, at the Company's election, before January
1, 1998).
The Company has not yet quantified the impacts of adopting Statement 133 on its
financial statements and has not determined the timing of or method of adoption
of Statement 133. However, the Statement could increase volatility in earnings
and other comprehensive income.
Note 7 - Litigation
On July 29, 1996, Information Resources, Inc. ("IRI") filed a complaint in the
United States District Court for the Southern District of New York, naming as
defendants The Dun & Bradstreet Corporation ("Old D&B"), A.C. Nielsen Company
(which is a subsidiary of the Company "ACNielsenCo") and I.M.S. International,
Inc. ("IMS"), formerly a subsidiary of Cognizant Corporation ("Cognizant") and
currently a subsidiary of IMS Health Incorporated (the "IRI Action").
The complaint alleges various violations of the United States antitrust laws,
including alleged violations of Sections 1 and 2 of the Sherman Act. The
complaint also alleges a claim of tortious interference with a contract and a
claim of tortious interference with a prospective business relationship. These
latter claims relate to the acquisition by defendants of Survey Research Group
Limited ("SRG"). IRI alleges that SRG violated an alleged agreement with IRI
when it agreed to be acquired by the defendants and that the defendants induced
SRG to breach that agreement.
IRI's complaint alleges damages in excess of $350,000, which amount IRI has
asked to be trebled under the antitrust laws. IRI also seeks punitive damages in
an unspecified amount.
By notice of motion dated October 15, 1996, defendants moved for an order
dismissing all claims in the complaint. On May 6, 1997 the United States
District Court for the Southern District of New York issued a decision on the
motion to dismiss. The Court dismissed IRI's claim of attempted monopolization
in the United States with leave to replead within sixty days. The Court denied
defendants' motion with respect to the remaining claims in the complaint. On
June 3, 1997, defendants filed an answer and counterclaims. Defendants denied
all material allegations of the complaint. In addition, ACNielsenCo asserted
counterclaims against IRI alleging that IRI has made false and misleading
statements about ACNielsenCo's services and commercial activities and that such
conduct constitutes a violation of Section 43(a) of the Lanham Act and unfair
competition. ACNielsenCo seeks injunctive relief and damages.
On July 7, 1997, IRI filed an amended complaint seeking to replead the claim of
attempted monopolization in the United States, which had been dismissed by the
Court in its May 6, 1997 decision. By notice of motion dated August 18, 1997,
defendants moved for an order dismissing the amended claim. On December 1, 1997,
the Court denied defendants' motion.
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<PAGE>
In connection with the IRI Action, Old D&B, Cognizant (the former parent company
of IMS) and the Company entered into an Indemnity and Joint Defense Agreement
(the "Indemnity and Joint Defense Agreement") pursuant to which they agreed (i)
to certain arrangements allocating potential liabilities ("IRI Liabilities")
that may arise out of or in connection with the IRI Action and (ii) to conduct a
joint defense of such action. In particular, the Indemnity and Joint Defense
Agreement provides that the Company will assume exclusive liability for IRI
Liabilities up to a maximum amount to be calculated at the time such
liabilities, if any, become payable (the "ACN Maximum Amount"), and that
Cognizant and Old D&B will share liability equally for any amounts in excess of
the ACN Maximum Amount. The ACN Maximum Amount will be determined by an
investment banking firm as the maximum amount which the Company is able to pay
after giving effect to (i) any plan submitted by such investment bank which is
designed to maximize the claims paying ability of the Company without impairing
the investment banking firm's ability to deliver a viability opinion (but which
will not require any action requiring stockholder approval), and (ii) payment of
related fees and expenses. For these purposes, financial viability means the
ability of the Company, after giving effect to such plan, the payment of related
fees and expenses and the payment of the ACN Maximum Amount, to pay its debts as
they become due and to finance the current and anticipated operating and capital
requirements of its business, as reconstituted by such plan, for two years from
the date any such plan is expected to be implemented.
The Indemnity and Joint Defense Agreement also imposes certain restrictions on
the payment of cash dividends and the ability of the Company to purchase its
stock.
In June 1998 (i) Old D&B changed its name to R.H. Donnelly Corporation and
spun-off (the "D&B Spin") a company now named The Dun & Bradstreet Corporation
("New D&B"), and (ii) Cognizant changed its name to Nielsen Media Research, Inc.
("NMR") and spun-off (the "Cognizant Spin") a company named IMS Health
Incorporated ("IMS Health"). Pursuant to the terms of a Distribution Agreement
dated as of October 28, 1996 among the Company, Old D&B and Cognizant, New D&B
was required as a condition to the D&B Spin, and IMS Health was required as a
condition to the Cognizant Spin, to undertake to the Company to be jointly and
severally liable with its former parent company for, among other things, the
obligations of such former parent company under the Indemnity and Joint Defense
Agreement. Each of New D&B and IMS Health did provide such undertaking to the
Company.
Management of ACNielsen is unable to predict at this time the final outcome of
the IRI Action or whether its resolution could materially affect the Company's
results of operations, cash flows or financial position.
The Company and its subsidiaries are also involved in other legal proceedings
and litigation arising in the ordinary course of business. In the opinion of
management, the outcome of such current legal proceedings, claims and
litigation, if decided adversely, could have a material effect on quarterly or
annual operating results or cash flows when resolved in a future period.
However, in the opinion of management, these matters will not materially affect
the Company's consolidated financial position.
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<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations (Dollar amounts in thousands, except per share data)
Quarter ended June 30, 1998 compared with Quarter ended June 30, 1997
Net income for the second quarter was $16,088 or $0.27 per diluted share, a
$5,839, or $0.09 per share improvement over the second quarter of 1997. Net
income included an after-tax negative currency translation impact of $2,372, or
$0.04 per diluted share.
Revenue for the quarter ended June 30, 1998 was $346,495, a decrease of 2.8%
from the second quarter of 1997, reflecting the negative impact of a strong U.S.
dollar. Driven by solid growth in all regions, revenue advanced 4.2% in local
currency.
The Company's operating income in the second quarter increased 38.9% or, $7,263,
to $25,920, despite a negative currency translation impact of $4,089. Strong
U.S. revenue growth, coupled with improved operating efficiency across all three
of the Company's regions, drove the substantial increase. Excluding Year 2000
costs, operating income increased 53.4% or $9,964, to $28,621.
Other income-net was $1,818, compared with $322 in the second quarter of 1997,
primarily reflecting increased interest income on higher average cash balances.
The Company's operating results by geographic region for the quarters ended
June 30, 1998 and 1997 are set forth in the table below.
<TABLE>
<CAPTION>
Operating Revenue Operating Income
(Loss)
---------------------------- -------------------------
1998 1997 1998 1997
<S> <C> <C> <C> <C>
United States $ 89,329 $ 78,206 $ 9,620 $ 4,268
Canada/ Latin America 46,829 52,499 7,312 7,065
------ ------ ----- -----
Total Americas 136,158 130,705 16,932 11,333
Europe, Middle East & Africa 146,005 149,374 9,699 8,243
Asia Pacific * 64,332 76,246 1,990 (919)
------ ------ ------ -------
Subtotal 346,495 356,325 28,621 18,657
Year 2000 Costs - - (2,701) -
------- ------- ------- -------
Total $ 346,495 $ 356,325 $ 25,920 $ 18,657
========= ========= ======== ========
<FN>
*Includes ACNielsen Japan
</FN>
</TABLE>
The following discusses results on a geographic basis:
Total Americas revenue increased 4.2% to $136,158 from $130,705. Excluding the
impact of currency translation, revenue grew 6.6%. Operating income was $16,932,
a $5,599 improvement over the prior year, including an $897 negative foreign
translation impact.
In the United States, revenue grew 14.2% to $89,329, reflecting continued growth
in account-level information, advances in modeling and analytics and additional
revenue from new clients and from ACNielsen EDI, acquired in December 1997.
Excluding ACNielsen EDI, U.S. revenue grew 11.3%. Operating income was $9,620,
an increase of $5,352 over the prior year. Revenue growth and continuing
improvements in operating efficiency drove the gain.
-12-
<PAGE>
In Canada and Latin America, reported revenue of $46,829 was down 10.8%, $5,670
from the prior year quarter, due to the transfer in January 1998 of ACNielsen's
media business to the IBOPE joint venture and a negative foreign translation
impact of $3,175. Excluding the transfer, local currency revenue from the base
business rose 3.8%, resulting from higher retail measurement sales in Canada,
Mexico, Brazil and Colombia. Operating income increased 3.5% to $7,312 from
$7,065 in 1997, including a $897 negative impact of foreign currency
translation.
Revenue in the Europe, Middle East & Africa ("EMEA") region declined 2.3% to
$146,005, from $149,374 in 1997, due to a $7,497 negative impact of foreign
currency translation. Revenue for EMEA grew 2.8% in local currency, primarily
the result of strong growth in Eastern Europe and higher revenue in the United
Kingdom and France. EMEA increased its operating income for the quarter by
$1,456, or 17.7%, to $9,699, despite a negative currency translation impact of
$887. The improvement was the result of improved operating efficiency and
increased productivity.
Asia Pacific's revenue decreased 15.6% to $64,332 from $76,246, due to a $14,081
negative impact from currency translation. Revenue for Asia Pacific grew 2.8% in
local currency due to increases in the Philippines, China/Hong Kong, Japan and
Australia, as well as new revenues from the Company's expanded operation in
India. Operating income increased $2,909 to $1,990, including a negative
currency translation impact of $2,326. Operating income in local currency rose
$5,235. The profit improvement reflects ongoing efforts to increase
productivity, improve operating efficiency and lower costs, particularly in
Japan.
Six months ended June 30, 1998 compared with Six months ended June 30, 1997.
Net income for the six months ended June 30, 1998 was $17,887 or $0.30 per
diluted share, a $11,754, or $0.19 per share improvement over the prior year.
Net income included an after-tax negative currency translation impact of $3,700,
or $0.06 per diluted share.
Revenue for the six months ended June 30, 1998 was $672,296, a decrease of
$8,803 or 1.3% from the first six months of 1997, reflecting a negative foreign
currency translation impact of $54,403. Driven by solid growth in all regions,
revenue advanced 6.7% in local currency.
The Company's operating income for the six months ended June 30, 1998 increased
$16,645 to $26,124, despite a negative currency translation impact of $6,379.
Strong U.S. revenue growth, coupled with improved operating efficiency across
all three of the Company's regions, drove the substantial increase. Excluding
Year 2000 costs, operating income increased $22,682 to $32,161.
Other income-net was $4,716, compared with $1,878 in the first six months of
1997, primarily reflecting lower interest expense on lower borrowings and
increased interest income on higher average cash balances.
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<PAGE>
The Company's operating results by geographic region for the six months
ended June 30, 1998 and 1997 are set forth in the table below.
<TABLE>
<CAPTION>
Operating Revenue Operating Income
(Loss)
------------------------- ------------------------
1998 1997 1998 1997
<S> <C> <C> <C> <C>
United States $ 172,496 $ 151,513 $ 15,405 $ 4,718
Canada/ Latin America 94,895 100,558 12,748 9,896
------ ------- ------ -----
Total Americas 267,391 252,071 28,153 14,614
Europe, Middle East & Africa 277,603 282,999 4,662 1,245
Asia Pacific * 127,302 146,029 (654) (6,380)
------- ------- ------ ------
Subtotal 672,296 681,099 32,161 9,479
Year 2000 Costs - - (6,037) -
--------- --------- -------- -------
Total $ 672,296 $ 681,099 $ 26,124 $ 9,479
========= ========= ======== =======
<FN>
*Includes ACNielsen Japan
</FN>
</TABLE>
The following discusses results on a geographic basis:
Total Americas revenue increased 6.1% to $267,391 from $252,071. Excluding the
impact of currency translation, revenue grew 8.6%. Operating income was $28,153,
a $13,539 improvement over the prior year, including a $1,632 negative foreign
translation impact.
In the United States, revenue grew $20,983, or 13.8% to $172,496, reflecting
continued growth in account-level information, consumer panel, advances in
modeling and analytics and additional revenue from new clients and from
ACNielsen EDI, acquired in December 1997. Excluding ACNielsen EDI, U.S. revenue
grew 10.9%. Operating income was $15,405, an increase of $10,687 over the prior
year. Revenue growth and continuing improvements in operating efficiency drove
the gain.
In Canada and Latin America, reported revenue of $94,895 was down 5.6% or,
$5,663 from the prior year, due to the transfer in January 1998, of ACNielsen's
media business to the IBOPE joint venture and a negative foreign translation
impact of $6,459. Excluding the transfer, local currency revenue from the base
business rose 8.6%, resulting from higher retail measurement sales in Brazil,
Mexico, Canada and Colombia. Operating income increased 28.8% to $12,748 from
$9,896 in 1997, including a $1,632 negative impact of foreign currency
translation.
Revenue in the Europe, Middle East & Africa ("EMEA") region declined 1.9% to
$277,603, from $282,999 in 1997, reflecting a $20,447 negative impact of foreign
currency translation. Revenue for EMEA grew 5.3% in local currency, primarily
the result of strong growth in Eastern Europe, higher revenue in France and the
United Kingdom and the new acquisitions in South Africa, Turkey and Israel. EMEA
increased its operating income $3,417 to $4,662 despite a negative currency
translation impact of $1,384, reflecting improved operating efficiency and
increased productivity.
-14-
<PAGE>
Asia Pacific's revenue decreased 12.8% to $127,302 from $146,029, due to a
$27,497 negative impact from currency translation. Revenue for Asia Pacific grew
6.0% in local currency due to increases in China/Hong Kong, the Philippines and
Japan, as well as new revenues from expanded operations in India. The region
reduced its operating loss from $6,380 to $654, including a negative currency
translation impact of $3,394. Operating income in local currency rose $9,120.
The profit improvement reflects ongoing efforts to increase productivity,
improve operating efficiency and lower costs, particularly in Japan.
Liquidity and Capital Resources
Six Months Ended June 30, 1998 and 1997
Net cash provided by operating activities for the six months ended June 30, 1998
totaled $20,514 compared with $3,041 for the comparable period in 1997. The
change primarily is the result of improved operating results (net income of
$17,887 in 1998 as compared to net income of $6,133 in 1997) and lower payments
related to special charges ($5,995) and for income taxes ($5,784), partially
offset by a greater increase in accounts receivable ($10,687).
Net cash used in investing activities totaled $108,704 for the six months ended
June 30, 1998 compared with $40,616 for the comparable period in 1997. The
increase in cash used in investing activities of $68,088 primarily represents
cash paid to acquire BASES ($65,000), and increased additions to computer
software ($4,816).
Net cash provided by financing activities for the six months ended June 30,
1998, totaled $6,173 compared with cash used in financing activities of $8,512
for the comparable period in 1997. The increase in cash provided of $14,685
primarily reflected borrowings in the current year of $20,797 to partially fund
the acquisition of BASES, as compared with a decrease in borrowings of $10,347
during the comparable period in 1997, offset by payments to repurchase common
stock ($21,517).
During the first quarter of 1998, the Company became a partner in a joint
venture that provides media measurement services in Latin America. The joint
venture, IBOPE Media Information, offers television audience measurement (TAM),
radio audience measurement (RAM), and advertising expenditure measurement
services (AEM) in various Latin American markets. Under the terms of the
agreement, the Company received an 11% equity interest in the joint venture and
a $9,400 interest bearing note in exchange for the Company's Latin America TAM,
RAM and AEM business assets and the assumption of certain transition liabilities
in a non-cash transaction. The first half 1998 financial statements reflect a
preliminary allocation of the business assets exchanged that will be finalized
later in the year. The Company did not recognize a gain or loss on the
transaction.
Year 2000
The Company relies on software and related technologies in the operation of its
business. Based on a comprehensive assessment, the Company determined that it
will be required to modify or replace significant portions of its software so
that its computer systems will be Year 2000 compliant. The Company is utilizing
internal and external resources to execute its Year 2000 compliance program.
Third-party contract programmers have been retained, and are presently
renovating and testing software. Renovation of code is scheduled to be
substantially complete by year end 1998, with testing and implementation of new
programs to be completed by mid-1999. The Company currently believes that it
will be able to modify or replace its affected systems in a timely manner and
with no significant disruptions to its operations.
-15-
<PAGE>
Preliminary estimates of the total Year 2000 compliance costs to be incurred
with respect to the affected systems approximate $15,000 to $20,000 over the
costs of normal software upgrades and replacements. Maintenance and modification
costs will be expensed as incurred, while the costs of new software will be
capitalized and amortized over the software's useful life.
Such costs are expected to be incurred primarily in 1998 and totaled $6,037
and $0 for the six months ended June 30, 1998 and 1997, respectively.
The Company also is communicating with its data suppliers and customers
regarding the Year 2000 issue. Failure by data suppliers to successfully address
the issue could result in delays in data becoming available to the Company for
use in its products and services. Failure by customers could disrupt their
ability to maximize their use of such products and services. The Company is
currently unable to determine the effect, if any, that such failures might have
on the Company's operations or future business results.
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
The Annual Meeting of Shareholders of ACNielsen Corporation was held on April
15, 1998.
The following nominees for director named in the Proxy Statement dated March 13,
1998 were elected at the Meeting by the votes indicated.
For Withheld
Robert H. Beeby 52,189,621 319,192
Thomas C. Hays 52,191,434 317,379
Robert J Lievense 52,154,808 354,005
John R. Meyer 52,180,230 328,583
The votes in favor of the election of the nominees represent at least 99.3%
of the shares voted for each of the nominees.
The ratification of the selection of Arthur Andersen LLP as independent public
accountants to audit the Company's consolidated financial statements for 1998
was approved by the following vote:
For Against Abstain
Number of shares 52,427,890 36,439 44,484
-16-
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
(4) Instruments Defining the Rights of Security Holders, including
Indentures
(b) ACNielsen Corporation U.S. $250,000,000 Credit Agreement
dated as of April 15, 1998
(27) Financial Data Schedule (filed electronically)
(99) Other Exhibits
(a) Letter of Undertaking dated June 29, 1998 from The New Dun
& Bradstreet Corporation to Cognizant Corporation and
ACNielsen Corporation
(b) Letter of Undertaking dated June 29, 1998 from IMS Health
Incorporated to The Dun & Bradstreet Corporation and
ACNielsen Corporation
(b) Reports on Form 8-K.
There were no reports on Form 8-K filed during the quarter ended June 30,
1998.
-17-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ACNIELSEN CORPORATION
(Registrant)
Date: August 13, 1998 /s/ Robert J. Chrenc
-------------------------------------
Robert J. Chrenc
Executive Vice President
And Chief Financial Officer
Date: August 13, 1998 /s/ Michael S. Geltzeiler
-------------------------------------
Michael S. Geltzeiler
Senior Vice President and Controller
-18-
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<CASH> 119,329
<SECURITIES> 0
<RECEIVABLES> 267,373
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 435,300
<PP&E> 437,694
<DEPRECIATION> 290,877
<TOTAL-ASSETS> 1,028,903
<CURRENT-LIABILITIES> 477,179
<BONDS> 0
0
0
<COMMON> 583
<OTHER-SE> 452,486
<TOTAL-LIABILITY-AND-EQUITY> 1,028,903
<SALES> 0
<TOTAL-REVENUES> 672,296
<CGS> 0
<TOTAL-COSTS> 646,172
<OTHER-EXPENSES> 106
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (4,822)
<INCOME-PRETAX> 30,840
<INCOME-TAX> 12,953
<INCOME-CONTINUING> 17,887
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 17,887
<EPS-PRIMARY> 0.30
<EPS-DILUTED> 0.30
</TABLE>
Exhibit (4)(b)
ACNIELSEN CORPORATION
U.S. $250,000,000
Credit Agreement
dated as of
April 15, 1998
The Chase Manhattan Bank,
as Administrative Agent
-------------------------
Chase Securities Inc.,
as Arranger
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms......................................... 1
SECTION 1.02. Classification of Loans and
Borrowings.......................................... 29
SECTION 1.03. Terms Generally ...................................... 29
SECTION 1.04. Accounting Terms; GAAP................................ 30
SECTION 1.05. Exchange Rates........................................ 30
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................... 31
SECTION 2.02. Loans and Borrowings.................................. 33
SECTION 2.03. Requests for Revolving Borrowings..................... 34
SECTION 2.04. Competitive Bid Procedure............................. 35
SECTION 2.05. Swingline Loans....................................... 38
SECTION 2.06. Funding of Borrowings................................. 40
SECTION 2.07. Interest Elections.................................... 41
SECTION 2.08. Termination and Reduction of
Commitments; Increase in Commitments................ 42
SECTION 2.09. Repayment of Loans; Evidence of
Debt................................................ 49
SECTION 2.10. Prepayment of Loans................................... 51
SECTION 2.11. Fees.................................................. 53
SECTION 2.12. Interest.............................................. 55
SECTION 2.13. Alternate Rate of Interest............................ 56
SECTION 2.14. Increased Costs; Illegality........................... 57
SECTION 2.15. Break Funding Payments................................ 60
SECTION 2.16. Taxes................................................. 61
SECTION 2.17. Payments Generally; Pro Rata
Treatment; Sharing of Setoffs....................... 62
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders............................................. 64
SECTION 2.19. Letters of Credit........................ ............ 65
SECTION 2.20. Notice of Revolving Alternate Currency
Loans and Special Loans............................. 70
<PAGE>
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.................................. 70
SECTION 3.02. Authorization; Enforceability......................... 70
SECTION 3.03. Governmental Approvals; No Conflicts.................. 71
SECTION 3.04. Financial Condition; No Material
Adverse Change...................................... 71
SECTION 3.05. Properties............................................ 71
SECTION 3.06. Litigation and Environmental
Matters............................................. 72
SECTION 3.07. Compliance with Laws and Agreements................... 72
SECTION 3.08. Investment and Holding Company
Status.............................................. 72
SECTION 3.09. Taxes................................................. 73
SECTION 3.10. ERISA................................................. 73
SECTION 3.11. Disclosure............................................ 73
SECTION 3.12. Subsidiaries.......................................... 73
ARTICLE IV
Conditions
SECTION 4.01. Effective Date........................................ 74
SECTION 4.02. Each Credit Event..................................... 75
SECTION 4.03. Each Borrowing Subsidiary Credit
Event............................................... 75
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other
Information......................................... 76
SECTION 5.02. Notices of Material Events............................ 77
SECTION 5.03. Existence; Conduct of Business........................ 78
SECTION 5.04 Payment of Obligations................................ 78
SECTION 5.05. Maintenance of Properties;
Insurance........................................... 78
SECTION 5.06. Books and Records; Inspection Rights.................. 79
SECTION 5.07. Compliance with Laws.................................. 79
SECTION 5.08. Use of Proceeds..................................... 79
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness.......................................... 79
SECTION 6.02. Liens................................................. 81
SECTION 6.03. Fundamental Changes................................... 82
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions......................... 83
<PAGE>
SECTION 6.05. Transactions with Affiliates.......................... 83
SECTION 6.06. Restrictive Agreements................................ 83
SECTION 6.07. Certain Agreement..................................... 85
SECTION 6.08. Leverage Ratio........................................ 85
SECTION 6.09. Fixed Charge Coverage Ratio........................... 85
SECTION 6.10. Borrowing Subsidiaries................................ 85
ARTICLE VII
Events of Default..................................... 85
ARTICLE VIII
The Administrative Agent.............................. 88
ARTICLE IX
Guarantee............................................. 91
ARTICLE X
Miscellaneous
SECTION 10.01. Notices............................................... 92
SECTION 10.02. Waivers; Amendments................................... 93
SECTION 10.03. Expenses; Indemnity; Damage Waiver.................... 95
SECTION 10.04. Successors and Assigns................................ 96
SECTION 10.05. Survival.............................................. 99
SECTION 10.06. Counterparts; Integration;
Effectiveness....................................... 100
SECTION 10.07. Severability.......................................... 100
SECTION 10.08. Right of Setoff....................................... 100
SECTION 10.09. Governing Law; Jurisdiction; Consent
to Service of Process............................... 100
SECTION 10.10. WAIVER OF JURY TRIAL.................................. 101
SECTION 10.11. Headings.............................................. 101
SECTION 10.12. Confidentiality....................................... 101
SECTION 10.13. Interest Rate Limitation.............................. 102
SECTION 10.14. Conversion of Currencies.............................. 102
SECTION 10.15. European Economic and Monetary Union.................. 103
SECTION 10.16. Borrowing Subsidiaries................................ 106
SCHEDULES:
Schedule 2.01(a) -- Lenders and Facility Commitments
Schedule 2.01(b) -- Designated Currency Lenders and Designated
Currency Commitments
Schedule 2.01(c) -- Yen Lenders and Yen Commitments
Schedule 2.17 -- Payments on Foreign Currency Loans
Schedule 2.19 -- Initial LC Currencies
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries and Material Subsidiaries
<PAGE>
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.06 -- Restrictive Agreements
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Company's Counsel
Exhibit B-2 -- Form of Opinion of Simpson Thacher &
Bartlett
Exhibit C -- Form of Opinion of Borrowing Subsidiary's
Counsel
Exhibit D -- Form of Borrowing Subsidiary Agreement
Exhibit E -- Form of Borrowing Subsidiary Termination
Exhibit F -- Form of Alternate Currency Supplement
<PAGE>
CREDIT AGREEMENT (this "Agreement") dated as of April 15,
1998, among ACNIELSEN CORPORATION, the BORROWING SUBSIDIARIES
party hereto, the LENDERS party hereto and THE CHASE MANHATTAN
BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"AC Fronting Fee" has the meaning set forth in Section
2.11(c).
"AC Participation Fee" has the meaning set forth in
Section 2.11(c).
"Acquisition" means, as to any Person, the acquisition of (a)
the capital stock of a Person not then a Subsidiary of such Person which results
in such Person becoming a Subsidiary, (b) all or substantially all of the assets
of any other Person and (c) all or substantially all of the assets constituting
a business unit of any other Person.
"Administrative Agent" means The Chase Manhattan Bank, acting
through its New York branch, in its capacity as administrative agent for the
Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement Currency" has the meaning assigned to such
term in Section 10.14(b).
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall
<PAGE>
be effective from and including the effective date of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"Alternate Currency" means, at any time, any Foreign Currency
that is, at the time any Commitment is extended, any Loan is made or any Letter
of Credit is issued in such Foreign Currency, freely tradeable and exchangeable
into dollars in major financial markets (including the London, New York and
Tokyo markets).
"Alternate Currency Commitment" means, with respect to each
Alternate Currency Lender for any Alternate Currency, the commitment of such
Alternate Currency Lender (set forth in the applicable Alternate Currency
Supplement) to make Revolving Alternate Currency Loans in such Alternate
Currency, expressed as an amount representing the maximum aggregate Dollar
Equivalent of the principal amount of such Alternate Currency Lender's
outstanding Revolving Alternate Currency Loans in such Alternate Currency that
may be outstanding at any one time, as such commitment may be (a) reduced or
increased from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Alternate
Currency Lender pursuant to Section 10.04.
"Alternate Currency Lender" means any Lender that shall have
entered into an Alternate Currency Supplement with one or more Borrowers under
which it shall have extended an Alternate Currency Commitment to make Revolving
Alternate Currency Loans in one or more Alternate Currencies, and any other
Person that shall have become an Alternate Currency Lender pursuant to an
Assignment and Acceptance or Section 2.08(h), other than any such Person that
ceases to be an Alternate Currency Lender pursuant to any Assignment and
Acceptance.
"Alternate Currency Loan Exposure" means, with respect to any
Lender at any time, the sum of (a) the amount of Alternate Currency Loans in
respect of which such Lender has made (or is required to have made) payments to
the applicable Alternate Currency Lenders pursuant to Section 2.01(f) and (b)
such Lender's Applicable Percentage of the Dollar Equivalents of the aggregate
principal amounts of outstanding Revolving Alternate Currency Loans at such time
in respect of which payments have not been (and are not required to have been)
made by the Lenders to the applicable Alternate Currency Lenders pursuant to
Section 2.01(f).
"Alternate Currency Supplement" means an Alternate Currency
Supplement substantially in the form of Exhibit F.
"Applicable Agent" means, (a) with respect to a Loan or
Borrowing denominated in dollars, the Administrative Agent, (b) with respect to
a Loan or Borrowing denominated in Yen, the Japanese Agent and (c) with respect
to a Loan or Borrowing denominated in any currency other than dollars or Yen,
the London Agent or, with respect to any particular Foreign Currency, such other
Person as may be agreed upon by the Company and the
<PAGE>
Administrative Agent and designated in a notice delivered to the Lenders.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Available Facility Commitments represented by such
Lender's Available Facility Commitment.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan, or with respect to the Facility Fees, AC
Participation Fees or LC Participation Fees payable hereunder, as the case may
be, the applicable rate per annum set forth below under the caption
"Eurocurrency Spread/AC and LC Participation Fee Rate" or "Facility Fee Rate",
as the case may be, (i) if the Company's Index Debt is not then rated by either
S&P or Moody's and no corporate credit rating is then in effect by S&P or
Moody's for the Company, based upon the Fixed Charge Coverage Ratio for the most
recently ended period of four fiscal quarters for which the Company's
consolidated financial statements have been delivered pursuant to Section
5.01(a) or (b) or (ii) if the Company's Index Debt (or, in the absence of rated
Index Debt, if there is a corporate credit rating in effect by S&P or Moody's
for the Company) is rated by either S&P or Moody's, based upon the ratings by
S&P and/or Moody's applicable on such date to the Index Debt (or, in the absence
of rated Index Debt, based upon the corporate credit rating in effect by S&P or
Moody's for the Company), all as set forth below:
Performance-Based Pricing Grid
Eurocurrency Spread/AC
Fixed Charge and LC Participation
Coverage Ratio Fee Rate Facility Fee Rate
Category 1 0.170% 0.080%
Greater than or
equal to 2.3 to 1.00
Category 2 0.200% 0.100%
Greater than or
equal to 1.75 to
1.00
Category 3 0.225% 0.125%
Greater than or
equal to 1.55 to
1.00
Category 4 0.300% 0.150%
Greater than or
equal to 1.35 to
1.00
Category 5 0.450% 0.250%
Less than 1.35 to
1.00
<PAGE>
Ratings-Based Pricing Grid
Eurocurrency Spread/AC
and LC Participation
Rating Fee Rate Facility Fee Rate
Category 1 0.155% 0.070%
Greater than or
equal to A/A2
Category 2 0.170% 0.080%
Greater than or
equal to A-/A3
Category 3 0.200% 0.100%
Greater than or
equal to BBB+/Baa1
Category 4 0.225% 0.125%
Greater than or
equal to BBB/Baa2
Category 5 0.300% 0.150%
Greater than or
equal to BBB-/Baa3
Category 6 0.450% 0.250%
Less than or equal
to BB+/Ba1
At any time when the Applicable Rate shall be determined by
reference to the Performance-Based Pricing Grid, each change in the Applicable
Rate resulting from a change in the Fixed Charge Coverage Ratio shall be
effective during the period commencing on and including the date that is the
second Business Day after the delivery to the Administrative Agent pursuant to
Section 5.01(a) or (b) of consolidated financial statements indicating such
change and ending on the date immediately preceding the effective date of the
next such change; provided that (a) the Applicable Rate shall be determined by
reference to Category 2 under the Performance- Based Pricing Grid until the date
on which the Company delivers its financial statements for the fiscal quarter
ending June 30, 1998, pursuant to Section 5.01(b), and (b) if the Company fails
to deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), the Applicable Rate shall be determined by
reference to the Category next above the Category then in effect until the
resultant Default shall become an Event of Default, at which time the Applicable
Rate shall be determined by reference to Category 5 until such financial
statements shall have been delivered. At any time when the Applicable Rate shall
be determined by reference to the Ratings-Based Pricing Grid, (a) if either
Moody's or S&P shall not have in effect a rating for the Index Debt (or, in the
absence of rated Index Debt, if either Moody's or S&P shall not have in effect a
corporate credit rating for the Company) (other than by reason of the
circumstances referred to in the last sentence of this definition), then the
Applicable Rate shall be based upon the
<PAGE>
rating of the other rating agency; (b) if the ratings established or deemed to
have been established by Moody's and S&P for the Index Debt (or, in the absence
of rated Index Debt, the corporate credit ratings established or deemed to have
been established by Moody's or S&P for the Company) shall fall within different
Categories, the Applicable Rate shall be based on the higher of the two ratings
unless one of the two ratings is two or more Categories lower than the other, in
which case the Applicable Rate shall be determined by reference to (i) if one of
the ratings is two Categories lower than the other, the Category between the two
ratings, (ii) if one of the ratings is three Categories lower than the other,
the average of the Applicable Rates set forth for the two Categories between the
two ratings, (iii) if one of the ratings is four Categories lower than the
other, the Category two above that of the lower of the two ratings and (iv) if
one of the ratings is five Categories lower than the other, the average of the
Applicable Rates set forth for the four Categories between the two ratings; and
(c) if the ratings established by Moody's and S&P for the Index Debt (or, in the
absence of rated Index Debt, the corporate credit ratings established by S&P and
Moody's for the Company) shall be changed (other than as a result of a change in
the rating system of Moody's or S&P), such change shall be effective as of the
date on which it is first announced by the applicable rating agency. Each change
in the Applicable Rate based on the Ratings-Based Pricing Grid shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of Moody's or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the Borrower and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating systems or the unavailability of
ratings from such rating agency, and pending the effectiveness of such
amendment, the Applicable Rate shall be determined by reference to the rating of
the other rating agency then in effect or, if such circumstances apply to both
rating agencies, by reference to the Performance-Based Pricing Grid.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent
and the Company.
"Augmenting AC Lender" has the meaning assigned to such
term in Section 2.08(d).
"Augmenting Designated Currency Lender" has the meaning
assigned to such term in Section 2.08(d).
"Augmenting Facility Lender" has the meaning assigned to
such term in Section 2.08(d).
"Augmenting Lenders" has the meaning assigned to such
term in Section 2.08(d).
<PAGE>
"Augmenting Yen Lender" has the meaning assigned to such
term in Section 2.08(d).
"Available Facility Commitment" means, with respect to any
Lender at any time, an amount equal to such Lender's Facility Commitment at such
time minus such Lender's Funded Revolving Credit Exposure at such time. If the
Facility Commitments have terminated or expired, the Available Facility
Commitments shall be determined based upon the Facility Commitments most
recently in effect, giving effect to any assignments.
"Availability Period" means, with respect to the Facility
Commitments, the Alternate Currency Commitments, the Designated Currency
Commitments or the Yen Commitments, as the case may be, the period from and
including the Effective Date to but excluding the earlier of the Maturity Date
and the date of termination of the Facility Commitments, the Alternate Currency
Commitments, the Designated Currency Commitments or the Yen Commitments,
respectively.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrower" means the Company or any Borrowing
Subsidiary.
"Borrowing" means (a) Revolving Loans of the same Type and
currency, made, converted or continued on the same date and, in the case of
Eurocurrency Loans, as to which a single Interest Period is in effect, (b) a
Competitive Loan or group of Competitive Loans of the same Type and currency
made on the same date and as to which a single Interest Period is in effect, (c)
a Swingline Loan or (d) a Special Loan.
"Borrowing Date" means any Business Day specified in a notice
pursuant to Section 2.03, 2.04 or 2.05 as a date on which the relevant Borrower
requests Loans to be made hereunder.
"Borrowing Minimum" means (a) in the case of a Borrowing
denominated in dollars, $1,000,000 (or $5,000,000 in the case of a Competitive
Borrowing) and (b) in the case of a Borrowing denominated in any Foreign
Currency, the smallest amount of such Foreign Currency that (i) is an integral
multiple of 1,000,000 units (or, in the case of Sterling, 500,000 units) of such
currency and (ii) has a Dollar Equivalent in excess of $1,000,000 (or $5,000,000
in the case of a Competitive Borrowing).
"Borrowing Multiple" means (a) in the case of a Borrowing
denominated in dollars, $1,000,000 and (b) in the case of a Borrowing
denominated in any Foreign Currency, 1,000,000 units (or, in the case of
Sterling, 500,000 units) of such currency.
"Borrowing Request" means a request for a Revolving
Borrowing in accordance with Section 2.03.
<PAGE>
"Borrowing Subsidiary" means, at any time, any Subsidiary of
the Company designated as a Borrowing Subsidiary by the Company pursuant to
Section 10.16 that has not ceased to be a Borrowing Subsidiary pursuant to such
Section or Article VII; provided, that the Company owns or Controls shares of
capital stock representing at least 80% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of such Subsidiary.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit D.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit E.
"Brazilian Facility" means that certain Unsecured Revolving
Credit Facility dated as of November 1, 1996, between A.C. Nielsen do Brasil
Ltda. and The First National Bank of Boston, providing for unsecured revolving
loans not to exceed at any time $13,000,000.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that (a) when used in connection with a
Eurocurrency Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the applicable currency in the
London interbank market, (b) when used in connection with a Loan denominated in
Yen, the term "Business Day" shall also exclude any day on which banks in Tokyo
are authorized or required by law to remain closed, (c) when used in connection
with a Local Rate Loan, "Business Day" shall also exclude any day set forth in
an applicable Alternate Currency Supplement and (d) when used in connection with
a Foreign Currency Loan or Letter of Credit, the term "Business Day" shall also
exclude any day on which banks in (i) the jurisdiction of the account to which
the proceeds of such Loan are to be disbursed or the jurisdiction in which such
Letter of Credit may be presented for payment, as the case may be, and (ii) the
jurisdiction in which payments of principal of and interest on such Loan or LC
Disbursements in respect of such Letter of Credit are to be made are authorized
or required by law to remain closed.
"Calculation Date" means (a) the last Business Day of each
calendar month and such other Business Days during such calendar month as may be
specified by the Company in a notice delivered to the Administrative Agent and
(b) at any time when the sum of the Revolving Credit Exposures, Special Loan
Exposures and Competitive Loan Exposures (as determined from time to time
pursuant to Section 1.05(b)) exceeds 85% of the aggregate amount of the Lenders'
Facility Commitments, the last Business Day of each two week period.
"Capital Expenditures" means, for any period, without
duplication (a) the additions to property, plant and equipment and other capital
expenditures of the Company and its consolidated
<PAGE>
Subsidiaries that are (or would be) reflected in a consolidated statement of
cash flow of the Company for such period prepared in accordance with GAAP, and
(b) the additions to hardware and software of the Company and its consolidated
Subsidiaries that are (or would be) reflected in a consolidated statement of
cash flow of the Company for such period prepared in accordance with GAAP.
"Capital Lease Obligations" of any Person means the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Cash Interest Expense" means, for any period, Interest Expense
paid in cash during such period.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof),
of shares representing more than 25% of the aggregate ordinary voting power
represented by the issued and outstanding capital stock of the Company; or (b)
occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were neither (i) nominated by the board
of directors of the Company nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
any Issuing Bank (or, for purposes of Section 2.14(c), by any lending office of
such Lender or by such Lender's or such Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Class", when used in reference to (a) any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Dollar Loans, Revolving Designated Currency Loans, Revolving Yen
Loans, Revolving Alternate Currency Loans, Competitive Loans, Swingline Loans or
Special Loans and (b) any Commitment, refers to whether such Commitment is a
Facility Commitment, an Alternate Currency Commitment, a Designated Currency
Commitment or a Yen Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
<PAGE>
"Commitment" means a Facility Commitment, an Alternate
Currency Commitment, a Designated Currency Commitment or a Yen
Commitment.
"Company" means ACNielsen Corporation, a Delaware
corporation.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request for Competitive Bids
in accordance with Section 2.04.
"Competitive Borrowing" means a Borrowing comprised of
Competitive Loans.
"Competitive Loan" means a Loan made pursuant to
Section 2.04. Each Competitive Loan shall be a Eurocurrency Loan
or a Fixed Rate Loan.
"Competitive Loan Exposure" means, with respect to any Lender
at any time, the sum of (a) the aggregate principal amount of the outstanding
Competitive Loans of such Lender denominated in dollars and (b) the sum of the
Dollar Equivalents of the aggregate principal amounts of the outstanding
Competitive Loans of such Lender denominated in Alternate Currencies.
"Consolidated Tangible Assets" means the total assets of the
Company and its consolidated Subsidiaries less their consolidated Intangible
Assets. For purposes of this definition, "Intangible Assets" means the amount of
(i) all write-ups in the book value of any asset owned by the Company or a
consolidated Subsidiary and (ii) all unamortized debt discount and expense,
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, copyrights and other intangible assets.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Event" has the meaning assigned to such term in
Section 4.02.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Designated Currency Commitment Increase" has the
meaning assigned to such term in Section 2.08(f).
<PAGE>
"Designated Currency Increase Effective Date" has the meaning
assigned to such term in Section 2.08(f).
"Designated Currency" means Sterling, Deutsche Marks, Euros
(after their adoption by participating members of the European Union) and any
other Alternate Currency that shall be designated by the Company in a notice
delivered to the Administrative Agent and approved by the Administrative Agent
and all the Designated Currency Lenders as a Designated Currency.
"Designated Currency Commitment" means, with respect to each
Designated Currency Lender, the commitment of such Designated Currency Lender to
make Revolving Designated Currency Loans, expressed as an amount representing
the maximum aggregate Dollar Equivalents of the principal amounts of such
Designated Currency Lender's outstanding Revolving Designated Currency Loans
that may be outstanding at any one time, as such commitment may be (a) reduced
or increased from time to time pursuant to Section 2.08 and (b) reduced or
increased from time to time pursuant to assignments by or to such Designated
Currency Lender pursuant to Section 10.04. The initial amount of each Designated
Currency Lender's Designated Currency Commitment is set forth on Schedule
2.01(b), in the Assignment and Acceptance pursuant to which such Designated
Currency Lender shall have assumed its Designated Currency Commitment or in the
applicable Increase Notice delivered pursuant to Section 2.08(d), as applicable.
"Designated Currency Commitment Percentage" means, with respect
to any Designated Currency Lender, the percentage of the total Designated
Currency Commitments represented by such Lender's Designated Currency
Commitment.
"Designated Currency Lenders" means the Persons listed on
Schedule 2.01(b) and any other Person that shall have become a Designated
Currency Lender pursuant to any Assignment and Acceptance or Section 2.08(d),
other than a Person that ceases to be a Designated Currency Lender pursuant to
an Assignment and Acceptance.
"Deutsche Marks" means the lawful money of Germany.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"Dollar Equivalent" means, on any date of determination, with
respect to any amount in any Foreign Currency, the equivalent in dollars of such
amount, determined by the Administrative Agent pursuant to Section 1.05(a) using
the Exchange Rate with respect to such Foreign Currency then in effect.
"dollars" or "$" refers to lawful money of the
United States of America.
<PAGE>
"Domestic Borrowing Subsidiary" means any Borrowing Subsidiary
organized under the laws of any jurisdiction in the United States.
"EBITDA" means, for any period, the consolidated net income of
the Company and its consolidated Subsidiaries for such period plus, to the
extent deducted in computing such consolidated net income for such period, the
sum (without duplication) of (a) income tax expense, (b) Interest Expense, (c)
depreciation and amortization expense, (d) extraordinary losses, (e) the special
charge of $36,000,000 taken in the fourth quarter of the fiscal year ended
December 31, 1997 and (f) any other non-cash charges or expenses, minus, to the
extent added in computing such consolidated net income for such period the sum
(without duplication) of, (a) consolidated interest income, (b) extraordinary
gains, (c) the non-operating gain of $39,000,000 recognized during the fourth
quarter of the fiscal year ended December 31, 1997 and (d) any other non-cash
income.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
10.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued
<PAGE>
thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (d) the incurrence by the
Company or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by the Company or
any ERISA Affiliate from the PBGC or a plan administrator of any notice relating
to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Company or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Company or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Euro" has the meaning assigned to the term "euro" in
Section 10.15(a)
"Eurocurrency", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the LIBO Rate.
"Event of Default" means the occurrence of any of the events
specified in Article VII, provided that any requirement for notice, lapse of
time, or both, or the satisfaction of any other condition specified therein has
been satisfied.
"Exchange Rate" means, on any day, with respect to any
currency, the rate at which such currency may be exchanged into dollars (and,
for purposes of any provision of this Agreement requiring or permitting the
conversion of Foreign Currency Loans to dollar Loans, the rate at which dollars
may be exchanged into the applicable Foreign Currency), as set forth at
approximately 11:00 a.m., London time, on such date on the Reuters World
Currency Page for such currency. In the event that such rate does not appear on
any Reuters World Currency Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates
as may be agreed upon by the Administrative Agent and the Company, or, in the
absence of such agreement, such Exchange Rate shall instead be the arithmetic
average of the spot rates of exchange of the Administrative Agent in the market
where its foreign currency exchange operations in respect of such currency are
then being conducted, at or about 10:00 a.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 spot rate is being quoted, the Administrative Agent,
after consultation with the Company, may
<PAGE>
use any reasonable method it deems appropriate to determine such rate, and such
determination shall be presumed correct absent manifest error.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, any Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of any Borrower hereunder (each a
"Recipient"), (a) income or franchise taxes imposed on (or measured by) the net
income and branch profits, or similar taxes, of such Recipient imposed as a
result of a present or former connection between such Recipient and the
Governmental Authority imposing such tax (other than any such connection arising
solely from such Recipient having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement) and (b) in
the case of a Foreign Lender (other than an assignee pursuant to a request by a
Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender (i) to the extent such tax is in effect and would
apply as of the date such Foreign Lender becomes a party to this Agreement or
relates to payments received by a new lending office designated by such Foreign
Lender and is in effect and would apply at the time such lending office is
designated (other than any withholding tax imposed on (A) any payment by any
Borrowing Subsidiary that is designated after such Foreign Lender becomes a
party to this Agreement or designates a new lending office, (B) any payment by
any Borrower from a Payment Location other than the applicable Payment Location
identified in Section 2.17 or in Schedule 2.17 hereto or, in the case of any
amount payable in respect of a Revolving Alternate Currency Loan, in the
relevant Alternate Currency Supplement, as of the date such Foreign Lender
becomes a party to this Agreement or designates a new lending office or (C)
payments by any Borrower in respect of participations in Loans acquired pursuant
to Section 2.01(f)), or (ii) that is attributable to such Foreign Lender's
failure to comply with Section 2.16(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
applicable Borrower with respect to such withholding tax pursuant to Section
2.16(a).
"Existing Credit Agreement" means the Credit Agreement dated as
of December 19, 1996, as amended, among the Company, the borrowing subsidiaries
party thereto, the lenders party thereto, The Chase Manhattan Bank, as
administrative agent and The Northern Trust Company, as co-agent.
"Facility Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Revolving Alternate Currency Loans, Letters of Credit and Swingline Loans
hereunder, expressed as an amount representing the maximum aggregate amount of
such Lender's Revolving Credit Exposure hereunder, as such commitment may be (a)
reduced or increased from time to time pursuant to Section 2.08 and (b) reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to
<PAGE>
Section 10.04. The initial amount of each Lender's Facility Commitment is set
forth on Schedule 2.01(a), in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Facility Commitment or in the applicable
Increase Notice delivered pursuant to Section 2.08(d), as applicable. The
initial aggregate amount of Facility Commitments is $250,000,000.
"Facility Commitment Increase" has the meaning assigned
to such term in Section 2.08(e).
"Facility Commitment Percentage" means, with respect to any
Lender, the percentage of the total Facility Commitments represented by such
Lender's Facility Commitment. If the Facility Commitments have terminated or
expired, the Facility Commitment Percentage shall be based on the Facility
Commitments most recently in effect, giving effect to any assignments.
"Facility Fee" has the meaning set forth in Section
2.11(a).
"Facility Increase Effective Date" has the meaning set
forth in Section 2.08(e).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" of any Person means the chief financial
officer, treasurer or controller of such Person.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of (a) EBITDA for such period to (b) the sum of (i) Cash Interest Expense for
such period, (ii) Maintenance Capital Expenditures for such period, (iii) cash
tax payments by the Company and its consolidated Subsidiaries during such
period, (iv) scheduled principal payments (including scheduled principal
payments made pursuant to any amortization or sinking fund provisions) by the
Company and its consolidated Subsidiaries in connection with Indebtedness for
borrowed money maturing on or extendible at the option of the Company or a
Subsidiary to a date more than one year after the date as of which the Fixed
Charge Coverage Ratio is being determined or in connection with any Capital
Lease Obligation (other than in respect of the Brazilian Facility) and (v) cash
dividend payments by the Company during such period.
"Fixed Rate" means, with respect to any Competitive Loan (other
than a Eurocurrency Competitive Loan), the fixed rate of
<PAGE>
interest per annum specified by the Lender making such Competitive Loan in its
related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing
interest at a Fixed Rate.
"Foreign Currency" means a currency other than dollars.
"Foreign Currency Borrowing" means a Borrowing comprised
of Foreign Currency Loans.
"Foreign Currency Lenders" means any Lender of a Foreign
Currency Loan.
"Foreign Currency Loan" means a Revolving Alternate
Currency Loan, a Revolving Designated Currency Loan, a Revolving
Yen Loan, a Loan denominated in an Alternate Currency or a Special
Loan.
"Foreign Lender" means, with respect to any Loan, any Lender
making such Loan that is organized under the laws of a jurisdiction other than
the Relevant Jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not organized
under the laws of any jurisdiction in the United States.
"Funded Revolving Credit Exposure" means, with respect to any
Lender at any time, the sum at such time, without duplication, of (a) the
aggregate principal amount at such time of the outstanding Revolving Dollar
Loans of such Lender (including that portion of such Lender's Alternate Currency
Loan Exposure attributable to Alternate Currency Loans in respect of which such
Lender has made (or is required to have made) payments to the applicable
Alternate Currency Lenders pursuant to Section 2.01(f)), (b) the Dollar
Equivalent of the aggregate principal amount of the outstanding Revolving Yen
Loans of such Lender, (c) the aggregate amount of the Dollar Equivalents of the
principal amounts of the outstanding Revolving Designated Currency Loans of such
Lender, (d) that portion of such Lender's LC Exposure attributable to LC
Disbursements in respect of which such Lender has made (or is required to have
made) payments to the Issuing Bank pursuant to Section 2.19(d) and (e) that
portion of such Lender's Swingline Exposure attributable to Swingline Loans in
respect of which such Lender has made (or is required to have made) payments to
the Swingline Lender pursuant to Section 2.05(c).
"GAAP" means generally accepted accounting principles in
the United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial,
<PAGE>
taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing any
Indebtedness of any other Person (the "primary obligor") whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or to purchase (or to advance or supply funds for the
purchase of) any security for the payment thereof, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such
Indebtedness of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Indebtedness or (d) as
an account party in respect of any letter of credit or letter of guaranty issued
to support such Indebtedness; provided, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"IJDA" means the Indemnity and Joint Defense Agreement dated as
of October 28, 1996, among the Company, The Dun & Bradstreet Corporation and
Cognizant Corporation, as amended by the side letter dated December 10, 1996,
from the Company and confirmed and agreed by The Dun & Bradstreet Corporation
and Cognizant Corporation.
"Increase Notice" has the meaning assigned to such term
in Section 2.08(d).
"Increasing AC Lender" has the meaning assigned to such
term in Section 2.08(d).
"Increasing Designated Currency Lender" has the meaning
assigned to such term in Section 2.08(d).
"Increasing Facility Lender" has the meaning assigned to
such term in Section 2.08(d).
"Increasing Lenders" has the meaning assigned to such
term in Section 2.08(d).
<PAGE>
"Increasing Yen Lender" has the meaning assigned to such
term in Section 2.08(d).
"Indebtedness" of any Person means, without duplication, (a)
all monetary obligations of such Person for borrowed money or with respect to
advances of any kind (it being understood that advance payments by customers in
the ordinary course of business in respect of accounts receivable, services or
expenses shall not constitute advances for purposes of this clause), (b) all
monetary obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all monetary obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all monetary obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business and amounts payable
to employees in the ordinary course of business), (e) all Indebtedness of others
of the type described in the other clauses of this definition secured by (or for
which the holder of such Indebtedness has an existing right to be secured by)
any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed (the amount of any Indebtedness
resulting from this clause (e) shall be equal to the lesser of (i) the amount
secured by such Lien and (ii) the fair market value of the property subject to
such Lien as determined in good faith by the Company), (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations of such
Person, (h) all monetary obligations, contingent or otherwise, of such Person as
an account party in respect of letters of credit and letters of guaranty issued
by banks or other financial institutions and (i) all monetary obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person would under applicable law or any agreement or instrument be
liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person shall not be liable therefor.
"Indemnified Taxes" means Taxes arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement other than Excluded Taxes and Other Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Initial AC Loans" has the meaning assigned to such term
in Section 2.08(h).
"Initial Designated Currency Loans" has the meaning assigned to
such term in Section 2.08(f).
<PAGE>
"Initial Facility Loans" has the meaning assigned to
such term in Section 2.08(e).
"Initial Yen Loans" has the meaning assigned to such
term in Section 2.08(g).
"Interest Election Request" means a request by the relevant
Borrower to convert or continue a Revolving Borrowing in accordance with Section
2.07.
"Interest Expense" means, for any period, the interest expense
of the Company and its consolidated Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including (i) the amortization of
debt discounts to the extent included in interest expense in accordance with
GAAP, (ii) the amortization of all fees (including fees with respect to interest
rate protection agreements or other interest rate hedging arrangements) payable
in connection with the incurrence of Indebtedness to the extent included in
interest expense in accordance with GAAP and (iii) the portion of any rents
payable under capital leases allocable to interest expense in accordance with
GAAP.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period, (c) with respect to any Fixed Rate Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Fixed Rate Borrowing with an Interest Period of more than 90 days'
duration (unless otherwise specified in the applicable Competitive Bid Request),
each day prior to the last day of such Interest Period that occurs at intervals
of 90 days' duration after the first day of such Interest Period, and any other
dates that are specified in the applicable Competitive Bid Request as Interest
Payment Dates with respect to such Borrowing, (d) with respect to any Local Rate
Loan, the dates set forth in the applicable Alternate Currency Supplement, (e)
with respect to any Special Loan, the date or dates agreed upon by the
applicable Borrower and the applicable Special Loan Lender and (f) with respect
to any Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurocurrency
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the relevant Borrower may elect, (b) with respect to
any Fixed Rate Borrowing, the period (which shall not be less than one day or
more than 360 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid
<PAGE>
Request and (c) with respect to any Special Loan, the period commencing on the
date of such Borrowing and ending on the date agreed upon between the applicable
Borrower and the applicable Special Loan Lender; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Investment" has the meaning assigned to such term in
Section 6.04.
"Issuing Bank" means The Chase Manhattan Bank and up to two
other Lenders that may become Issuing Banks hereunder from time to time by
entering into an Issuing Bank Agreement with the Company, each in its capacity
as the issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.19(i). Any Issuing Bank may arrange for one or
more Letters of Credit to be issued by Affiliates, reasonably acceptable to the
Company, of such Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate; provided that, unless any Borrower shall request that an Affiliate of
such Issuing Bank issue a Letter of Credit, the Issuing Bank may not recover for
any increased costs under Sections 2.14 or 2.16 incurred solely as a result of
an Affiliate of such Issuing Bank, rather than such Issuing Bank, issuing a
Letter of Credit if, without economic disadvantage to, and consistent with the
policies and practices of, such Issuing Bank, such Letter of Credit could have
been issued in a manner that would have avoided such costs under Sections 2.14
or 2.16.
"Issuing Bank Agreement" means an Issuing Bank Agreement
between an Issuing Bank and the Company.
"Japanese Agent" means The Chase Manhattan Bank, Tokyo
Branch.
"Judgment Currency" has the meaning assigned to such
term in Section 10.14(b).
"LC Currency" means, at any time, any Foreign Currency set
forth in Schedule 2.19 and any other Alternate Currency acceptable to the
applicable Issuing Bank.
<PAGE>
"LC Disbursement" means (i) in the case of a Letter of Credit
denominated in dollars, a payment made by the applicable Issuing Bank in respect
of such Letter of Credit and (ii) in the case of a Letter of Credit denominated
in an LC Currency, the Dollar Equivalent of a payment made by the applicable
Issuing Bank in respect of such Letter of Credit (based on the applicable
Exchange Rate on the date the LC Disbursement is made).
"LC Exposure" means at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit denominated in dollars at
such time, (b) the aggregate amount of the Dollar Equivalents of the undrawn
amounts of all outstanding Letters of Credit denominated in LC Currencies at
such time and (c) the aggregate amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Company at such time. The LC Exposure of
any Lender at any time shall be the sum of (a) the amount of LC Disbursements
that have not yet been reimbursed by or on behalf of the Company and in respect
of which such Lender has made (or is required to have made) payments to the
Issuing Bank pursuant to Section 2.19(d) and (b) such Lender's Applicable
Percentage of the aggregate LC Exposure (excluding the portion thereof
consisting of LC Disbursements in respect of which the Lenders have made (or are
required to have made) payments to the Issuing Bank pursuant to Section
2.19(d)).
"LC Fronting Fee" has the meaning set forth in Section
2.11(b).
"LC Participation Fee" has the meaning set forth in
Section 2.11(b).
"Lenders" means the Persons listed on Schedule 2.01(a) and any
other Person that shall have become a Lender pursuant to an Assignment and
Acceptance or Section 2.08(d), other than any such Person that ceases to be a
Lender pursuant to an Assignment and Acceptance. Unless the context otherwise
requires, the term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement.
"Leverage Ratio" means, at any time, the ratio of (a) Total
Debt at such time to (b) EBITDA for the most recent period of four consecutive
fiscal quarters of the Company ended at or prior to such time (and solely for
purposes of this definition, if the Company or any of its Subsidiaries shall
have completed an Acquisition or if the Company shall have merged with any
Person during such period, EBITDA shall be determined on a pro forma basis as if
such acquisition or merger had occurred at the beginning of such period).
"LIBO Rate" means, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate appearing on Page 3750 (or, in the case of a
Eurocurrency Foreign Currency Borrowing, the rate appearing on the Page for the
applicable currency) of the Dow Jones Market Service (or on any successor or
substitute page of
<PAGE>
such Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such Service,
as determined by the Applicable Agent, in consultation with the Company, from
time to time for purposes of providing quotations of interest rates applicable
to dollar deposits (or, in the case of a Eurocurrency Foreign Currency
Borrowing, deposits in the applicable currency) in the London interbank market)
at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for deposits in dollars (or
the applicable currency) with a maturity comparable to such Interest Period. In
the event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurocurrency Borrowing for such Interest Period
shall be the rate at which the Administrative Agent is offered dollar deposits
of $5,000,000 (or, in the case of a Eurocurrency Foreign Currency Borrowing,
deposits in the applicable currency in an amount the Dollar Equivalent of which
is approximately equal to $5,000,000) and for a maturity comparable to such
Interest Period in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset of any Person, (a) any
mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or
security interest in, on or of such asset for the purpose of securing any
obligation of such Person or any other Person and (b) the interest of a vendor
or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such asset.
"Loans" means the loans made by the Lenders to the
Borrowers pursuant to this Agreement.
"Local Rate" when used in reference to any Revolving Alternate
Currency Loan or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, are bearing interest at a local base rate set forth with respect
to such currency of such Loan or Borrowing in an applicable Alternate Currency
Supplement.
"London Agent" means Chase Manhattan International
Limited.
"Maintenance Capital Expenditures" means Capital Expenditures
that are related to the maintenance of the properties and assets of the Company
and the Subsidiaries and shall be deemed to equal $40,000,000 for any period of
four fiscal quarters for purposes of calculating the Fixed Charge Coverage
Ratio; provided that if the Company shall project Capital Expenditures
(excluding any costs of Acquisitions included therein) in excess of $90,000,000
for any fiscal year, then the Company and the Administrative Agent shall
negotiate in good faith to determine whether a modification to this definition
is required and, if required, to agree upon such a modification (which shall
become effective upon such agreement and consent of the Required
<PAGE>
Lenders); provided further that Maintenance Capital Expenditures shall in no
event be deemed to be less than $40,000,000.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest applicable to such Loan, as specified by the Lender making such Loan in
its related Competitive Bid.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or financial condition of the Company and
the Subsidiaries taken as a whole, and (b) the rights of or remedies available
to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of the
Company and its Subsidiaries in an aggregate outstanding principal amount
exceeding $15,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Company or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Company or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Material Subsidiary" means any (a) Borrowing Subsidiary and
any (b) Subsidiary (i) the Consolidated Tangible Assets of which exceed 3% of
the Consolidated Tangible Assets of the Company and its consolidated
Subsidiaries as of the end of the most recently completed fiscal year or (ii)
the Net Revenue of which exceeds 3% of the Net Revenue of the Company and its
consolidated Subsidiaries for the most recently completed fiscal year; provided,
that (A) any Subsidiary that directly or indirectly owns a Material Subsidiary
shall itself be a Material Subsidiary and (B) in the event Subsidiaries that
would otherwise not be Material Subsidiaries shall in the aggregate account for
a percentage in excess of 10% of the Consolidated Tangible Assets or 10% of the
Net Revenue of the Company and its consolidated Subsidiaries as of the end of
and for the most recently completed fiscal year, then one or more of such
Subsidiaries designated by the Company (or, if the Company shall make no
designation, one or more of such Subsidiaries in descending order based on their
respective contributions to Consolidated Tangible Assets), shall be included as
Material Subsidiaries to the extent necessary to eliminate such excess.
"Maturity Date" means April 15, 2001.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
<PAGE>
"Net Revenue" means, with respect to any Person for any period,
the net revenue of such Person and its consolidated subsidiaries, determined on
a consolidated basis in accordance with GAAP for such period.
"Non-Increasing AC Lender" has the meaning assigned to
such term in Section 2.08(d).
"Non-Increasing Designated Currency Lender" has the meaning
assigned to such term in Section 2.08(d).
"Non-Increasing Facility Lender" has the meaning
assigned to such term in Section 2.08(d).
"Non-Increasing Lenders" shall have the meaning assigned to
such term in Section 2.08(d).
"Non-Increasing Yen Lender" has the meaning assigned to
such term in Section 2.08(d).
"Obligations" means the obligations of each of the Borrowing
Subsidiaries from time to time under this Agreement and the Borrowing Subsidiary
Agreements with respect to the payment of (i) the principal of and interest on
the Loans to each such Borrowing Subsidiary when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise and (ii) all other monetary obligations of each of the Borrowing
Subsidiaries hereunder and thereunder.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"Payment Location" means an office, branch or other place of
business of any Borrower from which any payment due hereunder shall be made.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due
or are being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.04;
<PAGE>
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance and
other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case in the ordinary
course of business, and deposits securing liabilities to insurance carriers
under insurance or self-insurance arrangements; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Company or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, credit ratings of at least A-2 (or the equivalent thereof)
and P-2 (or the equivalent thereof) from S&P and Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America
or any State thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other
than a Multiemployer Plan) (i) subject to the provisions of
<PAGE>
Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA and (ii) in
respect of which the Company or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prepayment Account" has the meaning assigned to such
term in Section 2.10(e).
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Proposed Effective Date" has the meaning assigned to
such term in Section 2.08(d).
"Register" has the meaning assigned to such term in
Section 10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Relevant Jurisdiction" means (i) in the case of any Loan to
the Company or any Domestic Borrowing Subsidiary, the United States of America,
and (ii) in the case of any Loan to any other Borrowing Subsidiary, the
jurisdiction imposing (or having the power to impose) withholding tax on
payments by such Borrowing Subsidiary under this Agreement.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Facility Commitments representing at least 51% of
the sum of the total Revolving Credit Exposures and unused Facility Commitments
at such time; provided that, for purposes of declaring the Loans to be due and
payable pursuant to Article VII, and for all purposes after the Loans become due
and payable pursuant to Article VII or the Facility Commitments expire or
terminate, the total Competitive Loan Exposures and Special Loan Exposures of
the Lenders shall be included in their respective Revolving Credit Exposures in
determining the Required Lenders.
"Reset Date" has the meaning set forth in
Section 1.05(a).
"Revolving Alternate Currency Borrowing" means a
Borrowing comprised of Revolving Alternate Currency Loans.
"Revolving Alternate Currency Loans" means the Loans
made pursuant to Section 2.01(d) that are denominated in an
Alternate Currency. Each Revolving Alternate Currency Loan shall
be a Eurocurrency Loan or a Local Rate Loan.
<PAGE>
"Revolving Borrowing" means a Borrowing comprised of
Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum at such time, without duplication, of (a) the aggregate
principal amount at such time of the outstanding Revolving Dollar Loans of such
Lender (including that portion of such Lender's Alternate Currency Loan Exposure
attributable to Alternate Currency Loans in respect of which such Lender has
made (or is required to have made) payments to the applicable Alternate Currency
Lenders pursuant to Section 2.01(f)), (b) the Dollar Equivalent of the aggregate
principal amount of the outstanding Revolving Yen Loans of such Lender, (c) the
aggregate amount of the Dollar Equivalents of the principal amounts of the
outstanding Revolving Designated Currency Loans of such Lender, (d) such
Lender's Alternate Currency Loan Exposure (excluding that portion of such
Lender's Alternate Currency Loan Exposure attributable to Alternate Currency
Loans in respect of which such Lender has made (or is required to have made)
payments to the applicable Alternate Currency Lenders pursuant to Section
2.01(f)), (e) such Lender's LC Exposure and (f) such Lender's Swingline
Exposure.
"Revolving Designated Currency Borrowing" means a
Borrowing comprised of Revolving Designated Currency Loans.
"Revolving Designated Currency Loans" means the Loans
made pursuant to Section 2.01(b) that are denominated in
Designated Currencies. Each Revolving Designated Currency Loan
shall be a Eurocurrency Loan.
"Revolving Dollar Borrowing" means a Borrowing comprised
of Revolving Dollar Loans.
"Revolving Dollar Loans" means Loans denominated in dollars and
made pursuant to Section 2.01(a). Each Revolving Dollar Loan shall be a
Eurocurrency Loan or an ABR Loan.
"Revolving Loans" means Revolving Dollar Loans,
Revolving Yen Loans, Revolving Designated Currency Loans and
Revolving Alternate Currency Loans.
"Revolving Yen Borrowing" means a Borrowing comprised of
Revolving Yen Loans.
"Revolving Yen Loans" means the Loans made pursuant to
Section 2.01(c) that are denominated in Yen. Each Revolving Yen
Loan shall be a Eurocurrency Loan.
"S&P" means Standard & Poor's.
"Special Loan Exposure" means, with respect to any Lender at
any time, the sum of the Dollar Equivalents of the aggregate principal amounts
of the outstanding Special Loans of such Lender.
<PAGE>
"Special Loans" has the meaning assigned to such term in
Section 2.02(b).
"Special Loan Lender" means a Lender with an outstanding
Special Loan.
"Statutory Reserve Rate" means, with respect to any currency, a
fraction (expressed as a decimal), the numerator of which is the number one and
the denominator of which is the number one minus the aggregate of the maximum
reserve, liquid asset or similar percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal established by any
Governmental Authority of the jurisdiction of such currency (or any other
jurisdiction in which the funding operations of any Lender shall be conducted
with respect to any currency) to which banks in such jurisdiction are subject
for any category of deposits or liabilities customarily used to fund loans in
such currency or by reference to which interest rates applicable to Loans in
such currency are determined. Such reserve, liquid asset or similar percentages
shall, in the case of dollars, include those imposed pursuant to Regulation D of
the Board. Eurocurrency Loans shall be deemed to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under Regulation D or any
other applicable law, rule or regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Sterling" or "(pound)" means the lawful money of the United
Kingdom.
"Subsequent Designated Currency Borrowings" has the meaning
assigned to such term in Section 2.08(f).
"Subsequent Facility Borrowings" has the meaning
assigned to such term in Section 2.08(e).
"Subsequent Yen Borrowings" has the meaning assigned to
such term in Section 2.08(g).
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" means any subsidiary of the Company.
<PAGE>
"Successor Corporation" has the meaning assigned to such
term in Section 6.03.
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be the sum of (a) the amount of
Swingline Loans outstanding at such time in respect of which such Lender has
made (or is required to have made) payments to the Swingline Lender pursuant to
Section 2.05(c) and (b) such Lender's Applicable Percentage of the aggregate
Swingline Exposure (excluding the portion thereof consisting of Swingline Loans
in respect of which the Lenders have made (or are required to have made)
payments to the Swingline Lender pursuant to Section 2.05(c)).
"Swingline Lender" means The Chase Manhattan Bank, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to
Section 2.05.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Debt" means, at any date, all Indebtedness (including
all Capital Lease Obligations) of the Company and its consolidated Subsidiaries
at such date to the extent such Indebtedness should be reflected on the
consolidated balance sheet of the Company (excluding any such items which appear
only in the notes to such consolidated balance sheet) at such date in accordance
with GAAP.
"Transactions" means the execution, delivery and performance by
the Borrowers of this Agreement and the Borrowing Subsidiary Agreements, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate,
a Local Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate
or a Fixed Rate.
"Wholly Owned Subsidiary" means a subsidiary all the capital
stock of which (other than directors' qualifying shares) is owned by the Company
or another Wholly Owned Subsidiary.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Yen" or "(Y)" refers to the lawful money of Japan.
<PAGE>
"Yen Commitment" means, with respect to each Yen Lender, the
commitment of such Yen Lender to make Revolving Yen Loans, expressed as an
amount representing the maximum aggregate Dollar Equivalent of the principal
amount of such Yen Lender's outstanding Revolving Yen Loans that may be
outstanding at any one time, as such commitment may be (a) reduced or increased
from time to time pursuant to Section 2.08 and (b) reduced or increased from
time to time pursuant to assignments by or to such Yen Lender pursuant to
Section 10.04. The initial amount of each Yen Lender's Yen Commitment is set
forth on Schedule 2.01(c), in the Assignment and Acceptance pursuant to which
such Yen Lender shall have assumed its Yen Commitment or in the applicable
Increase Notice delivered pursuant to Section 2.08(d), as applicable.
"Yen Commitment Increase" has the meaning assigned to
such term in Section 2.08(g).
"Yen Commitment Percentage" means, with respect to any Yen
Lender, the percentage of the total Yen Commitments represented by such Lender's
Yen Commitment.
"Yen Increase Effective Date" has the meaning assigned
to such term in Section 2.08(g).
"Yen Lenders" shall mean the Persons listed on Schedule 2.01(c)
and any other Person that shall become a Yen Lender pursuant to an Assignment
and Acceptance or Section 2.08(d), other than any such Person that ceases to be
a Yen Lender pursuant to an Assignment and Acceptance.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class
and Type (e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its
<PAGE>
entirety and not to any particular provision hereof, (d) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights. Any
reference to a dollar amount in Sections 6.01, 6.02 and 6.04 shall deemed to be
a reference to that dollar amount or the equivalent thereof in one or more
Foreign Currencies.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m., New
York City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
currency (A) in which any Lender or Lenders shall have extended a commitment to
make Loans, (B) in which any Loan or Loans shall be outstanding or (C) in which
any undrawn Letter of Credit may be denominated and (ii) give notice thereof to
the Lenders and the Company. The Exchange Rates so determined shall become
effective on the first Business Day immediately following 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
Section 2.01(f), Section 2.13, Section 2.14(g), Section 2.19(e), Section 10.14,
the definition of LC Disbursement or any other provision expressly requiring the
use of a current Exchange Rate) be the Exchange Rates employed in converting any
amounts between dollars and Foreign Currencies.
(b) Not later than 5:00 p.m., New York City time, on each Reset
Date and each Borrowing Date with respect to Foreign Currency Loans, the
Administrative Agent shall (i) determine the aggregate amount of the Dollar
Equivalents of the principal amounts of the Foreign Currency Loans and Foreign
Currency Letters of Credit then outstanding (after giving effect to any Foreign
Currency Loans or Foreign Currency Letters of Credit made, issued, repaid or
canceled on such date) and (ii) notify the Lenders and the Company of the
results of such determination.
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ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions set forth herein, each Lender agrees to make Loans denominated in
dollars to any Borrower from time to time during the Availability Period for the
Facility Commitments in an aggregate principal amount that will not result in
(i) such Lender's Revolving Credit Exposure exceeding such Lender's Facility
Commitment or (ii) the aggregate amount of the Lenders' Revolving Credit
Exposures, Competitive Loan Exposures and Special Loan Exposures exceeding the
aggregate amount of the Lenders' Facility Commitments.
(b) Subject to the terms and conditions set forth herein, each
Designated Currency Lender agrees to make Loans denominated in any Designated
Currency to any Borrower from time to time during the Availability Period for
the Designated Currency Commitments in an aggregate principal amount that, after
giving effect to any requested Loan, will not result in (i) the aggregate amount
of the Dollar Equivalents of the principal amounts of the Revolving Designated
Currency Loans of any Designated Currency Lender exceeding such Lender's
Designated Currency Commitment, (ii) the aggregate amount of the Dollar
Equivalents of the principal amounts of all outstanding Revolving Designated
Currency Loans, Revolving Yen Loans and Revolving Alternate Currency Loans
exceeding $100,000,000, (iii) any Lender's Revolving Credit Exposure exceeding
such Lender's Facility Commitment or (iv) the aggregate amount of the Lenders'
Revolving Credit Exposures, Competitive Loan Exposures and Special Loan
Exposures exceeding the aggregate amount of the Lenders' Facility Commitments.
(c) Subject to the terms and conditions set forth herein, each
Yen Lender agrees to make Loans denominated in Yen to any Borrower from time to
time during the Availability Period for the Yen Commitments in an aggregate
principal amount that, after giving effect to any requested Loan, will not
result in (i) the Dollar Equivalent of the aggregate principal amount of the
Revolving Yen Loans of any Yen Lender exceeding such Lender's Yen Commitment,
(ii) the aggregate amount of the Dollar Equivalents of the principal amounts of
all outstanding Revolving Designated Currency Loans, Revolving Yen Loans and
Revolving Alternate Currency Loans exceeding $100,000,000, (iii) any Lender's
Revolving Credit Exposure exceeding such Lender's Facility Commitment or (iv)
the aggregate amount of the Lenders' Revolving Credit Exposures, Competitive
Loan Exposures and Special Loan Exposures exceeding the aggregate amount of the
Lenders' Facility Commitments.
(d) Subject to the terms and conditions set forth herein, each
Alternate Currency Lender agrees to make Loans denominated in any Alternate
Currency in respect of which it has extended an Alternate Currency Commitment to
any Borrower from time to time during the Availability Period for the Alternate
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Currency Commitments in an aggregate principal amount that, after giving effect
to any requested Loan, will not result in (i) the Dollar Equivalent of the
aggregate principal amount of the Revolving Alternate Currency Loans of any
Alternate Currency Lender in any Alternate Currency exceeding such Alternate
Currency Lender's Alternate Currency Commitment in such Alternate Currency, (ii)
the aggregate Dollar Equivalents of the principal amounts of all outstanding
Revolving Designated Currency Loans, Revolving Yen Loans and Revolving Alternate
Currency Loans exceeding $100,000,000, (iii) any Lender's Revolving Credit
Exposure exceeding such Lender's Facility Commitment or (iv) the aggregate
amount of the Lenders' Revolving Credit Exposures, Competitive Loan Exposures
and Special Loan Exposures exceeding the aggregate amount of the Lenders'
Facility Commitments.
(e) Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrowers may borrow, prepay and reborrow
Revolving Loans.
(f) In the event that any Revolving Alternate Currency
Borrowing shall be outstanding and (i) the principal of or interest on such
Revolving Alternate Currency Borrowing shall not be paid within three Business
Days after the date on which it is due and one or more Alternate Currency
Lenders holding a majority in interest of the outstanding Revolving Alternate
Currency Loans of which such Revolving Alternate Currency Borrowing is comprised
shall deliver to the Administrative Agent and the Company a request that the
provisions of this paragraph take effect with respect to such Borrowing or (ii)
the Commitments shall be terminated or the Loans accelerated pursuant to Article
VII, then (unless such request is revoked by such Alternate Currency Lenders)
(w) each Lender shall acquire at face value a participation in the obligations
of the applicable Borrower in respect of the principal of and interest on such
Revolving Alternate Currency Borrowing equal to its Applicable Percentage of
such obligations, (x) such obligations shall without further action be converted
into obligations denominated in dollars at the applicable Exchange Rate on the
date of such conversion, as determined by the Administrative Agent in accordance
with the terms hereof, (y) such converted obligations will bear interest at the
rate applicable to overdue ABR Borrowings under Section 2.12(f) and (z) each
Lender shall pay the purchase price for its Applicable Percentage of the dollar
amount thereof by wire transfer of immediately available funds in dollars to the
Administrative Agent in the manner provided in Section 2.06 (and the
Administrative Agent shall promptly wire the amounts so received to the
Alternate Currency Lenders ratably in accordance with their respective Revolving
Alternate Currency Loans comprising such Revolving Alternate Currency
Borrowing). Upon any event specified in clause (ii) above, the Alternate
Currency Commitments shall be permanently terminated. The obligations of the
Lenders to acquire and pay for participations in Revolving Alternate Currency
Borrowings pursuant to this paragraph shall be absolute and unconditional under
any and all circumstances.
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SECTION 2.02. Loans and Borrowings. (a) Each Revolving Dollar
Loan shall be made as part of a Borrowing consisting of Revolving Loans
denominated in dollars and made by the Lenders ratably in accordance with their
respective Available Facility Commitments. Each Revolving Designated Currency
Loan shall be made as part of a Borrowing consisting of Revolving Loans
denominated in the same Designated Currency made by the Designated Currency
Lenders ratably in accordance with their respective Designated Currency
Commitments. Each Revolving Yen Loan shall be made as part of a Borrowing
consisting of Revolving Loans denominated in Yen and made by the Yen Lenders
ratably in accordance with their respective Yen Commitments. Each Revolving
Alternate Currency Loan in any Alternate Currency shall be made by the
applicable Alternate Currency Lenders ratably in accordance with their
respective Alternate Currency Commitments in such Alternate Currency. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Facility Commitments of the Lenders, the Designated Currency
Commitments of the Designated Currency Lenders, the Yen Commitments of the Yen
Lenders and the Alternate Currency Commitments of the Alternate Currency Lenders
are several and no Lender shall be responsible for any other Lender's failure to
make Loans as required hereunder.
(b) At any time, a Borrower and any Lender may agree that such
Lender will make a Loan (a "Special Loan") to such Borrower in an Alternate
Currency bearing interest at an agreed upon rate for an interest period to be
agreed upon and upon such other terms as such Borrower and Lender may agree;
provided, that, (i) after giving effect to the making of any such Special Loan,
the aggregate amount of the Lenders' Revolving Credit Exposures, Competitive
Loan Exposures and Special Loan Exposures shall not exceed the aggregate amount
of the Lenders' Facility Commitments and (ii) no such Loan shall be a Special
Loan unless the applicable Borrower and the applicable Special Loan Lender
expressly agree at the time such Loan is made, and notify the Administrative
Agent, that such Loan shall be a Special Loan for purposes of this Agreement. If
the applicable Borrower and Special Loan Lender shall, after any Special Loan is
made, agree that such Special Loan shall no longer be a Special Loan hereunder
and notify the Administrative Agent of such agreement, such Loan shall be deemed
repaid as of the date of such agreement, shall cease to be entitled to any
further benefits under this Agreement and shall cease to be permitted under
Section 6.01(b). Special Loans shall be deemed Loans for all purposes of this
Agreement, except as set forth in paragraph (c) below.
(c) Notwithstanding any other provision of this Agreement, no
Special Loan Lender shall be entitled to compensation for any increased costs
under Sections 2.14, 2.15 or 2.16 with respect to any Special Loan or to any
Facility Fee under Section 2.11(a) in respect of a Special Loan to the extent
Facility Fees are otherwise payable after termination of such Lender's Facility
Commitment.
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(d) Subject to Section 2.13, (i) each Revolving Dollar
Borrowing shall be comprised entirely of Eurocurrency Loans or ABR Loans as the
applicable Borrower may request in accordance herewith, (ii) each Revolving
Designated Currency Borrowing shall be comprised entirely of Eurocurrency Loans,
(iii) each Revolving Yen Borrowing shall be comprised entirely of Eurocurrency
Loans, (iv) each Revolving Alternate Currency Borrowing shall be comprised
entirely of Eurocurrency Loans or Local Rate Loans as the applicable Borrower
may request in accordance herewith and (v) each Competitive Borrowing shall be
comprised entirely of Eurocurrency Loans or Fixed Rate Loans as the applicable
Borrower may request in accordance herewith. Each Swingline Loan shall be an ABR
Loan. Each Lender at its option may make any Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that (i)
any exercise of such option shall not affect the obligation of any Borrower to
repay such Loan in accordance with the terms of this Agreement and (ii) unless
any Borrower shall request that an Affiliate of a Lender make a Loan, a Lender
may not recover for any increased costs under Sections 2.14 or 2.16 incurred
solely as a result of an Affiliate of such Lender, rather than such Lender,
making a Loan, if, without economic disadvantage to, and consistent with the
policies and practices of, such Lender, such Loan could have been made in a
manner that would have avoided such increased costs under Section 2.14 or 2.16.
(e) At the commencement of each Interest Period for any
Borrowing (other than a Swingline Loan), such Borrowing shall be in an aggregate
amount that is at least equal to the Borrowing Minimum and an integral multiple
equal to the Borrowing Multiple; provided that an ABR Revolving Borrowing may be
in an aggregate amount that is equal to the aggregate Available Facility
Commitments. Each Swingline Loan shall be in an amount that is an integral
multiple of $500,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of 5 Revolving Eurocurrency Borrowings outstanding in each
currency.
(f) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To
request a Revolving Borrowing, a Borrower shall notify the
Applicable Agent of such request by telephone (a) in the case of a
Eurocurrency Borrowing denominated in dollars, not later than
11:00 a.m., New York City time, three Business Days before the
date of the proposed Borrowing, (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing, (c) in the
case of a Revolving Designated Currency Borrowing, not later than
10:00 a.m., London time, three Business Days before the date of
the proposed Borrowing, (d) in the case of a Revolving Yen
Borrowing, not later than 11:00 a.m., Tokyo time, three Business
Days before the date of the proposed Borrowing and (e) in the case
<PAGE>
of a Revolving Alternate Currency Borrowing, at such time as shall be specified
in the applicable Alternate Currency Supplement. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Applicable Agent of a written Borrowing Request in a form
approved by the Applicable Agent and signed by the applicable Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing, a
Eurocurrency Borrowing or a Local Rate Borrowing;
(iv) in the case of a Eurocurrency Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period", and the
currency of such Borrowing, which shall be dollars, Yen, a Designated
Currency or an Alternate Currency;
(v) the location and number of the relevant Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.06; and
(vi) in the case of a Borrowing in a Foreign Currency, the
location from which payments of the principal and interest on such
Borrowing will be made, which shall comply with the requirements of
Section 2.17.
If no currency is specified with respect to any requested Eurocurrency Revolving
Borrowing, then the relevant Borrower shall be deemed to have selected dollars.
If no Interest Period is specified with respect to any requested Eurocurrency
Revolving Borrowing, then the relevant Borrower shall be deemed to have selected
an Interest Period of one month's duration. If no election as to the Type of
Revolving Dollar Borrowing is specified, then the requested Revolving Dollar
Borrowing shall be an ABR Borrowing. Promptly following receipt of a Borrowing
Request in accordance with this Section, the Applicable Agent shall advise each
Lender of the details thereof and of the amount of such Lender's Loan to be made
as part of the requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period any Borrower may request Competitive Bids for Competitive Loans and may
(but shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans; provided that the sum of the Revolving Credit Exposures,
Competitive Loan Exposures and Special Loan Exposures at any time shall not
exceed the aggregate amount of the Lenders' Facility Commitments. To request
Competitive Bids, a Borrower shall notify
<PAGE>
the Applicable Agent of such request by telephone, (i) in the case of a
Eurocurrency Competitive Borrowing denominated in dollars, not later than 11:00
a.m., New York City time, four Business Days before the date of the proposed
Competitive Borrowing, (ii) in the case of a Eurocurrency Competitive Borrowing
denominated in a Foreign Currency, not later than 11:00 a.m., London time, four
Business Days before the date of the proposed Competitive Borrowing, (iii) in
the case of a Fixed Rate Borrowing denominated in dollars, not later than 10:00
a.m., New York City time, one Business Day before the date of the proposed
Competitive Borrowing and (iv) in the case of a Fixed Rate Borrowing denominated
in a Foreign Currency, not later than 10:00 a.m., London time, four Business
Days before the date of the proposed Competitive Borrowing; provided that the
Borrowers may submit jointly up to (but not more than) three Competitive Bid
Requests on the same day, but a Competitive Bid Request shall not be made within
five Business Days after the date of any previous Competitive Bid Request,
unless any and all such previous Competitive Bid Requests shall have been
withdrawn or all Competitive Bids received in response thereto rejected. Each
such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Applicable Agent of a written Competitive Bid
Request in a form approved by the Applicable Agent and signed by the applicable
Borrower. Each such telephonic and written Competitive Bid Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a
Business Day;
(iii) whether the requested Borrowing is to be
denominated in dollars or an Alternate Currency (specifying
such Alternate Currency, if applicable);
(iv) whether such Borrowing is to be a Eurocurrency
Borrowing or a Fixed Rate Borrowing;
(v) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term
"Interest Period";
(vi) the location and number of the relevant Borrower's
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.06; and
(vii) in the case of any Borrowing in an Alternate Currency,
the location from which payments of the principal of and interest on
such Borrowing will be made.
If no election as to the currency of a Borrowing is specified in any Competitive
Bid Request, then the applicable Borrower shall be deemed to have requested a
Borrowing in dollars. Promptly following receipt of a Competitive Bid Request in
accordance with this Section, the Applicable Agent shall notify the Lenders of
the
<PAGE>
details thereof by telecopy, inviting the Lenders to submit
Competitive Bids.
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to any Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by the
Applicable Agent and must be received by the Applicable Agent by telecopy, (i)
in the case of a Eurocurrency Competitive Borrowing denominated in dollars, not
later than 9:30 a.m., New York City time, three Business Days before the date of
the proposed Competitive Borrowing, (ii) in the case of a Eurocurrency
Competitive Borrowing denominated in a Foreign Currency, not later than 9:30
a.m., London time, three Business Days before the date of the proposed
Competitive Borrowing, (iii) in the case of a Fixed Rate Borrowing denominated
in dollars, not later than 9:30 a.m., New York City time, on the date of the
proposed Competitive Borrowing and (iv) in the case of a Fixed Rate Borrowing
denominated in a Foreign Currency, not later than 9:30 a.m., London time, three
Business Days before the date of the proposed Competitive Borrowing. Competitive
Bids that do not conform substantially to the form approved by the Applicable
Agent may be rejected by the Applicable Agent, and the Applicable Agent shall
notify the applicable Lender as promptly as practicable. Each Competitive Bid
shall specify (i) the principal amount (which shall be in an amount that is at
least equal to the Borrowing Minimum and an integral multiple equal to the
Borrowing Multiple, and which may equal the entire principal amount of the
Competitive Borrowing requested by the applicable Borrower) of the Competitive
Loan or Loans that the Lender is willing to make, (ii) the Competitive Bid Rate
or Rates at which the Lender is prepared to make such Loan or Loans (expressed
as a percentage rate per annum in the form of a decimal to no more than four
decimal places) and (iii) the Interest Period applicable to each such Loan and
the last day thereof.
(c) The Applicable Agent shall promptly notify the relevant
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, a
Borrower may accept or reject any Competitive Bid. The relevant Borrower shall
notify the Applicable Agent by telephone, confirmed by telecopy in a form
approved by the Applicable Agent, whether and to what extent it has decided to
accept or reject each Competitive Bid, (i) in the case of a Eurocurrency
Competitive Borrowing denominated in dollars, not later than 10:30 a.m., New
York City time, three Business Days before the date of the proposed Competitive
Borrowing, (ii) in the case of a Eurocurrency Competitive Borrowing denominated
in a Foreign Currency, not later than 10:30 a.m., London time, three Business
Days before the date of the proposed Competitive Borrowing, (iii) in the case of
a Fixed Rate Borrowing denominated in dollars, not later than 10:30 a.m., New
York City time, on the date of the proposed Competitive Borrowing and (iv) in
the case of a Fixed Rate Borrowing denominated in a Foreign Currency, not later
than
<PAGE>
10:30 a.m., London time, three Business Days before the date of the proposed
Competitive Borrowing; provided that (i) the failure of such Borrower to give
such notice shall be deemed to be a rejection of each Competitive Bid, (ii) such
Borrower shall not accept a Competitive Bid made at a particular Competitive Bid
Rate if such Borrower rejects a Competitive Bid made at a lower Competitive Bid
Rate, (iii) the aggregate amount of the Competitive Bids accepted by such
Borrower shall not exceed the aggregate amount of the requested Competitive
Borrowing specified in the related Competitive Bid Request, (iv) to the extent
necessary to comply with clause (iii) above, such Borrower may accept
Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in
the case of multiple Competitive Bids at such Competitive Bid Rate, shall be
made pro rata in accordance with the amount of each such Competitive Bid, and
(v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum principal
amount of at least the Borrowing Minimum and an integral multiple equal to the
Borrowing Multiple; provided further that if a Competitive Loan must be in an
amount less than the Borrowing Minimum because of the provisions of clause (iv)
above, such Competitive Loan may be for a minimum of $1,000,000 (or, in the case
of an Alternate Currency Competitive Loan, the smallest amount of such Alternate
Currency that (i) is an integral multiple of 1,000,000 units (or, in the case of
Sterling, 500,000 units) of such currency and (ii) has a Dollar Equivalent in
excess of $1,000,000), and in calculating the pro rata allocation of acceptances
of portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
the Borrowing Multiple in a manner determined by such Borrower. A notice given
by any Borrower pursuant to this paragraph shall be irrevocable.
(e) The Applicable Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the relevant Borrower at least one quarter of an hour earlier
than the time by which the other Lenders are required to submit their
Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this
Section.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
in dollars to the Company from time to time during the Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the aggregate Revolving Credit Exposures, Competitive Loan
Exposures and Special Loan Exposures
<PAGE>
exceeding the aggregate amount of the Lenders' Facility Commitments; provided
that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject
to the terms and conditions set forth herein, the Company may borrow, prepay and
reborrow Swingline Loans.
(b) To request a Swingline Loan, the Company shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Company. The Swingline Lender shall make each Swingline
Loan available to the Company by means of a credit to the general deposit
account of the Company with the Swingline Lender (or, in the case of a Swingline
Loan made to finance the reimbursement of an LC Disbursement, by remittance to
the applicable Issuing Bank) by 3:00 p.m., New York City time, on the requested
date of such Swingline Loan or to such other account as may be specified in the
applicable Borrowing Request.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage on the date of such notice of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to the Administrative Agent, for the account of
the Swingline Lender, such Lender's Applicable Percentage on the date of such
notice from the Administrative Agent of such Swingline Loan or Loans. Each
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Facility
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.06 with respect to Loans made
by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Lenders. The
Administrative Agent shall notify the Company of any participations in any
Swingline Loan acquired pursuant to this paragraph, and thereafter payments in
respect of such Swingline Loan shall be made to the Administrative Agent and
<PAGE>
not to the Swingline Lender. Any amounts received by the Swingline Lender from
the Company (or other party on behalf of the Company) in respect of a Swingline
Loan after receipt by the Swingline Lender of the proceeds of a sale of
participations therein shall be promptly remitted to the Administrative Agent;
any such amounts received by the Administrative Agent shall be promptly remitted
by the Administrative Agent to the Lenders that shall have made their payments
pursuant to this paragraph and to the Swingline Lender, as their interests may
appear. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Company of any default in the payment thereof.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan (other than a Revolving Alternate Currency Loan or a Special
Loan) to be made by it hereunder on the proposed date thereof by wire transfer
of immediately available funds by (i) 12:00 noon, New York City time, in the
case of a Loan denominated in dollars, (ii) 11:00 a.m., London time, in the case
of a Revolving Designated Currency Loan or a Competitive Loan denominated in a
Foreign Currency other than Yen, or (iii) 11:00 a.m., Tokyo time, in the case of
a Loan denominated in Yen, in each case to the account of the Applicable Agent
most recently designated by it for such purpose for Loans of such Class by
notice to the applicable Lenders; provided that Swingline Loans shall be made as
provided in Section 2.05. The Applicable Agent will make such Loans available to
the relevant Borrower by promptly crediting the amounts so received, in like
funds, to an account of such Borrower (i) maintained with the Administrative
Agent in New York City in the case of Loans denominated in dollars, (ii)
maintained with the Applicable Agent in Tokyo in the case of Loans denominated
in Yen, (iii) maintained with the Applicable Agent in London in the case of
Revolving Designated Currency Loans or (iv) designated in the applicable
Competitive Bid Request in the case of Alternate Currency Competitive Loans.
Each Lender shall make each Revolving Alternate Currency Loan or Special Loan,
as the case may be, to be made by it hereunder on the proposed date thereof by
wire transfer of immediately available funds (i) by the time and to the account
specified in the applicable Alternate Currency Supplement, in the case of a
Revolving Alternate Currency Loan or (ii) by the time and to the account agreed
upon by the applicable Borrower and Special Loan Lender, in the case of a
Special Loan.
(b) Unless the Applicable Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing (other than a
Revolving Alternate Currency Borrowing or a Special Loan) that such Lender will
not make available to the Applicable Agent such Lender's share of such
Borrowing, the Applicable Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section and may,
in reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Applicable Agent, then the
applicable Lender and such Borrower severally agree to pay to the Applicable
Agent forthwith
<PAGE>
on demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to such Borrower to but
excluding the date of payment to the Applicable Agent, at (i) in the case of
such Lender, (x) the Federal Funds Effective Rate (in the case of a Borrowing in
dollars) and (y) the rate reasonably determined by the Applicable Agent to be
the cost to it of funding such amount (in the case of a Borrowing in a Foreign
Currency) or (ii) in the case of such Borrower, the interest rate applicable to
the subject Loan. If such Lender pays such amount to the Applicable Agent, then
such amount shall constitute such Lender's Loan included in such Borrowing and
the Applicable Agent shall return to such Borrower any amount (including
interest) paid by such Borrower to the Applicable Agent pursuant to this
paragraph.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the relevant
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. A Borrower may elect
different options with respect to different portions of the affected Revolving
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to (i) Competitive Borrowings or Swingline Borrowings, which may not
be converted or continued or (ii) to Special Loans. Notwithstanding any contrary
provision herein, this Section shall not be construed to permit any Borrower to
(i) change the currency of any Borrowing or (ii) convert any Foreign Currency
Borrowing to an ABR Borrowing.
(b) To make an election pursuant to this Section, a Borrower
shall notify the Administrative Agent of such election by telephone by the time
and at the office at which a Borrowing Request would be required to be delivered
under Section 2.03 if such Borrower were requesting a Revolving Borrowing of the
Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the relevant Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which
<PAGE>
case the information to be specified pursuant to clauses (iii) and
(iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing, a Eurocurrency Borrowing or a Local Rate
Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then such Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely
Interest Election Request with respect to a Eurocurrency Revolving Borrowing
prior to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing (unless such Borrowing is
denominated in a Foreign Currency, in which case such Borrowing shall become due
and payable on the last day of such Interest Period). Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing
and the Applicable Agent, at the request of the Required Lenders, so notifies
the Company, then, so long as an Event of Default is continuing (i) no
outstanding Revolving Dollar Borrowing may be converted to or continued as a
Eurocurrency Borrowing and (ii) unless repaid, each Eurocurrency Revolving
Dollar Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments;
Increase in Commitments. (a) Unless previously terminated, the Facility
Commitments, the Designated Currency Commitments, the Yen Commitments and the
Alternate Currency Commitments shall terminate on the Maturity Date (or, in the
case of any Alternate Currency Commitment, on any earlier date specified in the
applicable Alternate Currency Supplement).
(b) The Company may at any time terminate, or from time to
time reduce, the Facility Commitments, the Designated Currency Commitments, the
Yen Commitments or the Alternate
<PAGE>
Currency Commitments; provided that (i) each reduction of the Facility
Commitments, the Designated Currency Commitments, the Yen Commitments or the
Alternate Currency Commitments in any Alternate Currency shall be in an amount
that is an integral multiple of $1,000,000 and (ii) the Company shall not
terminate or reduce the Facility Commitments if, after giving effect to any
concurrent prepayment of the Loans in accordance with Section 2.10, the
aggregate Revolving Credit Exposures, Competitive Loan Exposures and Special
Loan Exposures would exceed the aggregate amount of the Lenders' Facility
Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Facility Commitments, the Designated
Currency Commitments, the Yen Commitments or any Alternate Currency Commitments
under paragraph (b) of this Section at least one Business Day (or, to the extent
a concurrent prepayment of Loans is required in accordance with Section 2.10,
upon the minimum advance notice required in connection with such prepayment
under such Section) prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Company pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Facility Commitments, the Designated Currency Commitments, the Yen
Commitments or any Alternate Currency Commitments delivered by the Company may
state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Facility
Commitments, the Designated Currency Commitments, the Yen Commitments or any
Alternate Currency Commitments shall be permanent. Each reduction of the
Facility Commitments, the Designated Currency Commitments, the Yen Commitments
or the Alternate Currency Commitments in any Alternate Currency shall be made
ratably among the Lenders, the Designated Currency Lenders, the Yen Lenders or
the applicable Alternate Currency Lenders, as the case may be, in accordance
with their respective Facility Commitments, Designated Currency Commitments, Yen
Commitments or relevant Alternate Currency Commitments, as applicable.
(d) The Company may at any time and from time to time prior to
the Maturity Date, by written notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders), request that (i) the total
Facility Commitments be increased to an amount not in excess of $300,000,000,
(ii) the Designated Currency Commitments be increased to an amount not in excess
of $100,000,000 and/or (iii) the Yen Commitments be increased to an amount not
in excess of $100,000,000. Each such notice shall set forth the amount of the
requested increase in the total Facility Commitments, total Designated Currency
Commitments or total Yen Commitments, as the case may be, and the date (the
"Proposed Effective Date") on which such increase is requested to become
effective (which shall be not less than 30 days after the
<PAGE>
date of such notice), and shall offer each Lender, Designated Currency Lender or
Yen Lender, as the case may be, the opportunity to increase its (i) Facility
Commitment by its Facility Commitment Percentage of the proposed increase in the
amount of the total Facility Commitments, (ii) Designated Currency Commitment by
its Designated Currency Commitment Percentage of the proposed increase in the
amount of the total Designated Curreny Commitments or (iii) Yen Commitment by
its Yen Commitment Percentage of the proposed increase in the amount of the
total Yen Commitments. Each Lender, Designated Currency Lender or Yen Lender, as
the case may be, shall, by notice to the Company and the Administrative Agent
given not less than 15 days prior to the Proposed Effective Date, either agree
to increase its Facility Commitment, Designated Currency Commitment or Yen
Commitment, as the case may be, by all or a portion of the offered amount (each
(i) Lender so agreeing to an increase in its Facility Commitment being an
"Increasing Facility Lender", (ii) Designated Currency Lender so agreeing to an
increase in its Designated Currency Commitment being an "Increasing Designated
Currency Lender" and (iii) Yen Lender so agreeing to an increase in its Yen
Commitment being an "Increasing Yen Lender", and the Increasing Facility
Lenders, Increasing Designated Currency Lenders or Increasing Yen Lenders being
collectively referred to herein as "Increasing Lenders") or decline to increase
its Facility Commitment, Designated Currency Commitment or Yen Commitment, as
the case may be (and any Lender, Designated Currency Lender or Yen Lender, as
the case may be, that does not deliver such a notice within such period shall be
deemed to have declined to increase its Facility Commitment, Designated Currency
Commitment or Yen Commitment, as the case may be) (each Lender, Designated
Currency Lender or Yen Lender, as the case may be, so declining or deemed to
have declined being a "Non- Increasing Facility Lender", "Non-Increasing
Designated Currency Lender" or "Non-Increasing Yen Lender", as the case may be,
and the Non-Increasing Facility Lenders, Non-Increasing Designated Currency
Lenders and Non-Increasing Yen Lenders being collectively referred to herein as
"Non-Increasing Lenders"). In the event that, on the 15th day prior to the
Proposed Effective Date, the Lenders, Designated Currency Lenders or Yen
Lenders, as the case may be, shall have agreed pursuant to the preceding
sentence to increase their Facility Commitments, Designated Currency Commitments
or Yen Commitments, as the case may be, by an aggregate amount less than the
increase in the total Facility Commitments, Designated Currency Commitments or
Yen Commitments, as the case may be, requested by the Company, the Company may
arrange for one or more banks or other financial institutions (any such bank or
other financial institution referred to in this paragraph being called (i) in
the case of an increase in the Facility Commitments, an "Augmenting Facility
Lender", (ii) in the case of an increase in the Designated Currency Commitments,
an "Augmenting Designated Currency Lender" and (iii) in the case of an increase
in the Yen Commitments, an "Augmenting Yen Lender", and the Augmenting Facility
Lenders, Augmenting Designated Currency Lenders and Augmenting Yen Lenders being
collectively referred to herein as the "Augmenting Lenders"), which may include
any Lender, to extend Facility Commitments, Designated Currency Commitments or
Yen Commitments, as the case may be, or increase their existing Facility
Commitments, Designated Currency
<PAGE>
Commitments or Yen Commitments, as the case may be, in an aggregate amount equal
to the unsubscribed amount for such Class of Commitment, provided that (i) no
Person shall become an Augmenting Designated Currency Lender or Augmenting Yen
Lender hereunder unless it shall have a Facility Commitment hereunder, (ii) each
Augmenting Lender, if not already a Lender hereunder, shall be subject to the
approval of the Company and the Administrative Agent (which approvals shall not
be unreasonably withheld), (iii) no Lender (whether an Augmenting Lender or an
Increasing Lender), after giving effect to any increase in its Facility
Commitment hereunder, shall have a Designated Currency Commitment or Yen
Commitment in excess of its Facility Commitment, (iv) the Facility Commitment of
any Increasing Designated Currency Lender, Increasing Yen Lender, Augmenting
Designated Currency Lender or Augmenting Yen Lender may, subject to clause (ii)
above, be increased, if necessary, to an amount equal to its new Designated
Currency Commitment or Yen Commitment, as the case may be, by agreement between
such Lender and the Company, and the aggregate Facility Commitments shall be
increased (but not above $300,000,000) such that the Facility Commitment of each
such Lender is equal to the greater of the Designated Currency Commitment of
such Lender and the Yen Commitment of such Lender and (v) the Company and each
applicable Increasing Designated Currency Lender, Increasing Yen Lender,
Augmenting Designated Currency Lender or Augmenting Yen Lender shall execute all
such documentation as the Administrative Agent shall reasonably specify to
evidence its Facility Commitment, Designated Currency Commitment or Yen
Commitment, as the case may be, and its status as a Lender, Designated Currency
Lender or Yen Lender. Increases and new Commitments created pursuant to this
clause shall become effective on the Proposed Effective Date (or such later date
as shall be agreed by the Company, the Administrative Agent and the relevant
Lender) and the Administrative Agent shall notify each affected Lender thereof
(each such notice, an "Increase Notice"). Notwithstanding the foregoing, no
increase in the total Facility Commitments, Designated Currency Commitments or
Yen Commitments, as the case may be, (or in the Facility Commitment, Designated
Currency Commitment or Yen Commitment of any Lender) shall become effective
under this paragraph unless, (i) on the proposed date of the effectiveness of
such increase, the conditions set forth in paragraphs (a) and (b) of Section
4.02 shall be satisfied (with all references in such paragraphs to a Credit
Event being deemed to be references to such increase) and the Administrative
Agent shall have received a certificate to that effect dated such date and
executed by a Financial Officer of the Company and (ii) the Administrative Agent
shall have received (with sufficient copies for each of the Lenders) documents
consistent with those delivered on the Effective Date under clauses (b) and (c)
of Section 4.01 as to the corporate power and authority of the Borrowers to
borrow hereunder after giving effect to such increase.
(e) On the effective date (a "Facility Increase Effective
Date") of any increase in the total Facility Commitments pursuant to paragraph
(d) above, including any such increase pursuant to clause (iv) of the proviso in
such paragraph (d) (each
<PAGE>
a "Facility Commitment Increase"), (i) the aggregate principal amount of the
Revolving Dollar Loans outstanding (the "Initial Facility Loans") immediately
prior to giving effect to such Facility Commitment Increase on the related
Facility Increase Effective Date shall be deemed to be paid, (ii) each
Increasing Facility Lender and each Augmenting Facility Lender that shall have
been a Lender prior to such Facility Commitment Increase shall pay to the
Administrative Agent in same day funds an amount equal to the difference between
(A) the product of (I) such Lender's Applicable Percentage (calculated after
giving effect to such Facility Commitment Increase, the deemed payment of the
Initial Facility Loans and any concurrent Designated Currency Commitment
Increase and/or Yen Commitment Increase, but prior to the making of the related
Subsequent Facility Borrowings) multiplied by (ii) the amount of the related
Subsequent Facility Borrowings and (B) the product of (I) such Lender's
Applicable Percentage (calculated without giving effect to such Facility
Commitment Increase, the deemed payment of the Initial Facility Loans, the
making of the related Subsequent Facility Borrowings and any concurrent
Designated Currency Commitment Increase and/or Yen Commitment Increase)
multiplied by (II) the amount of such Initial Facility Loans, (iii) each
Augmenting Facility Lender that shall not have been a Lender prior to such
Facility Commitment Increase shall pay to Administrative Agent in same day funds
an amount equal to the product of (a) such Augmenting Facility Lender's
Applicable Percentage (calculated after giving effect to such Facility
Commitment Increase, the deemed payment of the Initial Facility Loans and any
concurrent Designated Currency Commitment Increase and/or Yen Commitment
Increase, but prior to the making of the related Subsequent Facility Borrowings)
multiplied by (b) the amount of the related Subsequent Facility Borrowings, and
(iv) after the Administrative Agent receives the funds specified in clauses (ii)
and (iii) above, the Administrative Agent shall pay to each Non-Increasing
Facility Lender the portion of such funds that is equal to the difference
between (A) the product of (I) such Non-Increasing Facility Lender's Applicable
Percentage (calculated without giving effect to such Facility Commitment
Increase, the deemed payment of the Initial Facility Loans, the making of the
related Subsequent Facility Borrowings and any concurrent Designated Currency
Commitment Increase and/or Yen Commitment Increase) multiplied by (II) the
amount of such Initial Facility Loans, and (B) the product of (I) such
Non-Increasing Facility Lender's Applicable Percentage (calculated after giving
effect to such Facility Commitment Increase, the deemed payment of the Initial
Facility Loans, and any concurrent Designated Currency Commitment Increase
and/or Yen Commitment Increase, but prior to the making of the related
Subsequent Facility Borrowings) multiplied by (II) the amount of the related
Subsequent Facility Borrowings, (v) after the effectiveness of such Facility
Commitment Increase, the Borrowers shall be deemed to have made new Revolving
Dollar Borrowings (the "Subsequent Facility Borrowings") pursuant to Section
2.02 in an aggregate principal amount equal to the aggregate principal amount of
such Initial Facility Loans and of the Types and for the Interest Periods
specified in a Borrowing Request delivered to the Administrative Agent in
accordance with
<PAGE>
Section 2.03, (vi) each Non-Increasing Facility Lender, each Increasing Facility
Lender and each Augmenting Facility Lender shall be deemed to hold its
Applicable Percentage of each related Subsequent Facility Borrowing (calculated
after giving effect to such Facility Commitment Increase, the deemed payment of
the Initial Facility Loans and any concurrent Designated Currency Increase
and/or Yen Commitment Increase, but prior to the making of the related
Subsequent Facility Borrowings) and (vii) the Borrowers shall pay each
Increasing Facility Lender and each Non- Increasing Facility Lender any and all
accrued but unpaid interest on such Initial Facility Loans. The deemed payments
made pursuant to clause (i) above in respect of each Eurocurrency Loan shall be
subject to indemnification by the Borrowers pursuant to the provisions of
Section 2.14 if the relevant Facility Increase Effective Date occurs other than
on the last day of the Interest Period relating thereto.
(f) On the effective date (a "Designated Currency Increase
Effective Date") of any increase in the total Designated Currency Commitments
pursuant to paragraph (d) above (each a "Designated Currency Commitment
Increase"), (i) the aggregate principal amount of the Revolving Designated
Currency Loans outstanding (the "Initial Designated Currency Loans") immediately
prior to giving effect to such Designated Currency Commitment Increase on the
related Designated Currency Increase Effective Date shall be deemed to be paid,
(ii) each Increasing Designated Currency Lender and each Augmenting Designated
Currency Lender that shall have been a Lender prior to such Designated Currency
Commitment Increase shall pay to the Administrative Agent in same day funds an
amount equal to the difference between (A) the product of (I) such Lender's
Designated Currency Commitment Percentage (calculated after giving effect to
such Designated Currency Commitment Increase) multiplied by (II) the amount of
the related Subsequent Designated Currency Borrowings and (B) the product of (I)
such Lender's Designated Currency Commitment Percentage (calculated without
giving effect to such Designated Currency Commitment Increase) multiplied by
(II) the amount of such Initial Designated Currency Loans, (iii) each Augmenting
Designated Currency Lender that shall not have been a Lender prior to such
Designated Currency Commitment Increase shall pay to Administrative Agent in
same day funds an amount equal to the product of (a) such Augmenting Designated
Currency Lender's Designated Currency Commitment Percentage (calculated after
giving effect to such Designated Currency Commitment Increase) multiplied by (b)
the amount of the related Subsequent Designated Currency Borrowings, and (iv)
after the Administrative Agent receives the funds specified in clauses (ii) and
(iii) above, the Administrative Agent shall pay to each Non-Increasing
Designated Currency Lender the portion of such funds that is equal to the
difference between (A) the product of (I) such Non-Increasing Designated
Currency Lender's Designated Commitment Percentage (calculated without giving
effect to such Designated Currency Commitment Increase) multiplied by (II) the
amount of such Initial Designated Currency Loans, and (B) the product of (I)
such Non- Increasing Designated Currency Lender's Designated Currency Commitment
Percentage (calculated after giving effect to such
<PAGE>
Designated Currency Commitment Increase) multiplied by (II) the amount of the
related Subsequent Designated Currency Borrowings, (v) after the effectiveness
of such Designated Currency Commitment Increase, the Borrowers shall be deemed
to have made new Revolving Designated Currency Borrowings (the "Subsequent
Designated Currency Borrowings") in an aggregate principal amount equal to the
aggregate principal amount of such Initial Designated Currency Loans and of the
Types and for the Interest Periods specified in a Borrowing Request delivered to
the Administrative Agent in accordance with Section 2.03, (vi) each
Non-Increasing Designated Currency Lender, each Increasing Designated Currency
Lender and each Augmenting Designated Currency Lender shall be deemed to hold
its Designated Currency Commitment Percentage of each related Subsequent
Designated Currency Borrowing (calculated after giving effect to such Designated
Currency Commitment Increase) and (vii) the Borrowers shall pay each Increasing
Designated Currency Lender and each Non-Increasing Designated Currency Lender
any and all accrued but unpaid interest on such Initial Designated Currency
Loans. The deemed payments made pursuant to clause (i) above in respect of each
Eurocurrency Loan shall be subject to indemnification by the Borrowers pursuant
to the provisions of Section 2.14 if a Designated Currency Increase Effective
Date occurs other than on the last day of the Interest Period relating thereto.
(g) On the effective date (a "Yen Increase Effective Date") of
any increase in the total Yen Commitments pursuant to paragraph (d) above (each
a "Yen Commitment Increase"), (i) the aggregate principal amount of the
Revolving Yen Loans outstanding (the "Initial Yen Loans") immediately prior to
giving effect to such Yen Commitment Increase on the related Yen Increase
Effective Date shall be deemed to be paid, (ii) each Increasing Yen Lender and
each Augmenting Yen Lender that shall have been a Lender prior to such Yen
Commitment Increase shall pay to the Administrative Agent in same day funds an
amount equal to the difference between (A) the product of (I) such Lender's Yen
Commitment Percentage (calculated after giving effect to such Yen Commitment
Increase) multiplied by (II) the amount of the related Subsequent Yen Borrowings
and (B) the product of (I) such Lender's Yen Commitment Percentage (calculated
without giving effect to such Yen Commitment Increase) multiplied by (II) the
amount of the Initial Yen Loans, (iii) each Augmenting Yen Lender that shall not
have been a Lender prior to such Yen Commitment Increase shall pay to
Administrative Agent in same day funds an amount equal to the product of (a)
such Augmenting Yen Lender's Yen Commitment Percentage (calculated after giving
effect to such Yen Commitment Increase) multiplied by (b) the amount of the
related Subsequent Yen Borrowings, and (iv) after the Administrative Agent
receives the funds specified in clauses (ii) and (iii) above, the Administrative
Agent shall pay to each Non-Increasing Yen Lender the portion of such funds that
is equal to the difference between (A) the product of (I) such Non-Increasing
Yen Lender's Yen Commitment Percentage (calculated without giving effect to such
Yen Commitment Increase) multiplied by (II) the amount of such Initial Yen
Loans, and (B) the product of (I) such Non-Increasing Yen Lender's Yen
Commitment Percentage (calculated after giving
<PAGE>
effect to such Yen Commitment Increase) multiplied by (II) the amount of the
related Subsequent Yen Borrowings, (v) after the effectiveness of such Yen
Commitment Increase, the Borrowers shall be deemed to have made new Borrowings
(the "Subsequent Yen Borrowings") in an aggregate principal amount equal to the
aggregate principal amount of such Initial Yen Loans and of the Types and for
the Interest Periods specified in a Borrowing Request delivered to the
Administrative Agent in accordance with Section 2.03, (vi) each Non-Increasing
Yen Lender, each Increasing Yen Lender and each Augmenting Yen Lender shall be
deemed to hold its Yen Commitment Percentage of each related Subsequent Yen
Borrowing (calculated after giving effect to such Yen Commitment Increase) and
(vii) the Borrowers shall pay each Increasing Yen Lender and each Non-Increasing
Yen Lender any and all accrued but unpaid interest on such Initial Yen Loans.
The deemed payments made pursuant to clause (i) above in respect of each
Eurocurrency Loan shall be subject to indemnification by the Borrowers pursuant
to the provisions of Section 2.14 if the related Yen Increase Effective Date
occurs other than on the last day of the Interest Period relating thereto.
(h) The Alternate Currency Commitments in any Alternate
Currency may be increased at any time and from time to time to an amount not in
excess in $100,000,000, and the Company may arrange for one or more banks or
other financial institutions that have not theretofore been Lenders to become
parties to this Agreement and each applicable Alternate Currency Supplement and
to extend Alternate Currency Commitments, by agreement among the Company, the
Alternate Currency Lenders having Alternate Currency Commitments in such
Alternate Currency and any such additional bank or financial institution,
provided that (i) any such increase in the Alternate Currency Commitments in any
Alternate Currency shall require the consent of all the Alternate Currency
Lenders having Alternate Currency Commitments in such Alternate Currency, (ii)
no Person shall extend any Alternate Currency Commitment unless it shall have a
Facility Commitment hereunder, (ii) a Facility Commitment of up to $5,000,000
may, subject to clause (iv) below, be established for any such Person by
agreement between such Person and the Company and the aggregate Facility
Commitments shall be increased (but not above $300,000,000) by the amount of
such Facility Commitment, (iv) each Person extending an Alternate Currency
Commitment, if not already a Lender hereunder, shall be subject to the approval
of the Administrative Agent (which approval shall not be unreasonably withheld),
and (v) the Company and such Person shall execute all such documentation as the
Administrative Agent shall reasonably specify to evidence its Facility
Commitment and its status as a Lender. In the event any new Facility Commitment
shall be extended as contemplated by the preceding sentence, the provisions of
paragraph (e) above shall apply as if the new Lender were an Augmenting Facility
Lender.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan (other than Revolving Alternate Currency Loans) of such Lender
made to such
<PAGE>
Borrower on the Maturity Date, (ii) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Competitive Loan of such
Lender made to such Borrower on the last day of the Interest Period applicable
to such Loan, (iii) to each Alternate Currency Lender the then unpaid principal
amount of each Revolving Alternate Currency Loan of such Lender made to such
Borrower on the Maturity Date (or on any earlier date specified in the
applicable Alternate Currency Supplement), (iv) to each Special Loan Lender the
principal amount of each Special Loan of such Lender made to such Borrower on
the date or dates agreed by the applicable Borrower and such Special Loan Lender
and (vi) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan of such Borrower on the earlier of the Maturity Date and the
first date after such Swingline Loan is made that is the 15th or last day of a
calendar month and is at least two Business Days after the day such Swingline
Loan is made; provided that on each date that a Revolving Borrowing in dollars
is made by a Borrower, such Borrower shall repay all Swingline Loans of such
Borrower then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
(and, in the case of a Foreign Currency Loan, the currency) thereof and the
Interest Period (if any) applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, each Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent and the Company. Thereafter, the
Loans evidenced by each such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 10.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if
<PAGE>
such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.10. Prepayment of Loans. (a) Any Borrower shall have
the right at any time and from time to time to prepay any Borrowing of such
Borrower in whole or in part, subject to prior notice in accordance with
paragraph (d) of this Section; provided that no Borrower shall have the right to
prepay any Competitive Loan without the prior consent of the Lender thereof.
(b) If, (i) on the last day of any Interest Period for any
Eurocurrency Borrowing or Fixed Rate Borrowing or (ii) on any Interest Payment
Date for any Local Rate Borrowing that is a fixed rate Borrowing or ABR
Borrowing, (A) the Revolving Credit Exposure of any Lender exceeds its Facility
Commitment or (B) the aggregate amount of the Revolving Credit Exposures,
Competitive Loan Exposures and Special Loan Exposures exceeds the aggregate
amount of the Lenders' Facility Commitments, the relevant Borrower shall, on
such day, prepay Revolving Loans in an amount equal to the lesser of (i) the
amount necessary to eliminate such excess (after giving effect to any other
prepayment of Loans on such day) and (ii) the amount of such Borrowing. If, on
any Reset Date, the aggregate amount of the Revolving Credit Exposures,
Competitive Loan Exposures and Special Loan Exposures exceeds 105% of the
aggregate amount of the Lenders' Facility Commitments, then the Borrowers shall,
not later than the next Business Day, prepay one or more Revolving Borrowings or
Swingline Borrowings in an aggregate principal amount equal to the excess, if
any, of the aggregate amount of the Revolving Credit Exposures, Competitive Loan
Exposures and Special Loan Exposures (as of such Reset Date and after giving
effect to any other prepayment of Loans on such day) over the aggregate amount
of the Lenders' Facility Commitments (as of the date of such prepayment).
(c) If, (i) on the last day of any Interest Period for any
Eurocurrency Foreign Currency Borrowing or Fixed Rate Foreign Currency Borrowing
or (ii) on any Interest Payment Date for any Local Rate Borrowing, the aggregate
amount of the Dollar Equivalents of the principal amounts of outstanding Foreign
Currency Loans exceeds the Foreign Currency Sublimit, the relevant Borrower
shall, on such day, prepay such Borrowing in an amount equal to the lesser of
(i) such excess (after giving effect to any other prepayment of Loans on such
day) and (ii) the amount of such Borrowing.
(d) The relevant Borrower shall notify the Applicable Agent
(and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurocurrency Revolving Dollar Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of prepayment,
(ii) in the case of prepayment of a Eurocurrency Designated Currency Borrowing,
not later than 11:00 a.m., London time, three Business Days before the date of
prepayment, (iii) in the case of prepayment of a Eurocurrency Yen Borrowing, not
later than 11:00 a.m., Tokyo Time, three Business
<PAGE>
Days before the date of prepayment, (iv) in the case of prepayment of an ABR
Revolving Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment, (v) in the case of a Revolving Alternate
Currency Borrowing, in accordance with the procedures set forth in the
applicable Alternate Currency Supplement, or (vi) in the case of prepayment of a
Swingline Loan, not later than 12:00 noon, New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Facility Commitments, the Designated
Currency Commitments, the Yen Commitments or the Alternate Currency Commitments
as contemplated by Section 2.08, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.08.
Promptly following receipt of any such notice relating to a Revolving Borrowing,
the Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Revolving Borrowing shall be in an amount that would
be permitted in the case of an advance of a Revolving Borrowing of the same Type
as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.12.
(e) In satisfaction of any prepayment obligation under
paragraph (b) or (c) of this Section, in each case with respect to any
Eurocurrency Borrowing, Fixed Rate Borrowing or Local Rate Borrowing that is a
fixed rate Borrowing, the relevant Borrower may deposit in the Prepayment
Account (as defined below) cash (in the currencies of the Loans to be prepaid)
in an aggregate amount sufficient to satisfy such prepayment obligation. The
Administrative Agent shall deposit such amount in the Prepayment Account and
shall apply such amount to prepay each Loan against which such cash is being
held, on the last day of the Interest Period applicable thereto (or, at the
direction of the Company, on any earlier date). For purposes of this Agreement,
the term "Prepayment Account" shall mean an account or accounts established by
the Company with the Administrative Agent and over which the Administrative
Agent shall have exclusive dominion and control, including the exclusive right
of withdrawal for application in accordance with this paragraph (e). The
Administrative Agent will, at the request of the Company from time to time,
invest cash in the Prepayment Account in Permitted Investments that mature on or
prior to the required date of prepayment of the Loans against which such cash is
being held; provided, however, that the Administrative Agent shall not be
required to make any investment (i) that would cause it to be in, or would
result in any, violation of any law, statute, rule or regulation or (ii) if a
Default or Event of Default shall have occurred and be continuing. The Company
shall indemnify the Administrative Agent for any losses relating to the
investments so that the cash in the Prepayment Account will be sufficient to
prepay each Loan against which such cash is being held, on the required date of
prepayment
<PAGE>
thereof. The Prepayment Account shall not bear interest other than any interest
or profits on such investments, which shall be deposited in the Prepayment
Account and reinvested and disbursed as specified above. If the maturity of the
Loans has been accelerated pursuant to Article VII, the Administrative Agent
may, in its sole discretion, apply all amounts on deposit in the Prepayment
Account to satisfy any of the obligations hereunder. The Company hereby grants
to the Administrative Agent, for its benefit and the benefit of the Lenders, a
security interest in the Prepayment Account to secure the obligations hereunder.
At any time when no Event of Default has occurred and is continuing, to the
extent the balance in the Prepayment Account exceeds the principal amount of the
outstanding Loans against which such balance in the Prepayment Account is
required to be held, the Administrative Agent shall release such excess in the
Prepayment Account to the Company.
SECTION 2.11. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee (a "Facility
Fee"), which shall accrue at the Applicable Rate on the daily amount of the
Facility Commitment of such Lender (whether used or unused) during the period
from and including the date hereof to but excluding the date on which such
Facility Commitment terminates; provided that, if such Lender continues to have
any Revolving Credit Exposure or Competitive Loan Exposure after its Facility
Commitment terminates, then such Facility Fee shall continue to accrue on the
daily amount of such Lender's Revolving Credit Exposure or Competitive Loan
Exposure from and including the date on which its Facility Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure or Competitive Loan Exposure. Accrued Facility Fees shall be
payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Facility Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that
any Facility Fees accruing after the date on which the Facility Commitments
terminate in full shall be payable on demand.
(b) The Company agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee (an "LC Participation Fee")
with respect to its participations in Letters of Credit, which shall accrue at
the Applicable Rate on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date on which such Lender's Facility Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to each
Issuing Bank a fronting fee (the "LC Fronting Fee"), which shall accrue at the
rate or rates per annum separately agreed upon between the Company and such
Issuing Bank on the average daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date of
termination of the Facility Commitments and the date on which there ceases to be
any LC Exposure, as well as such
<PAGE>
Issuing Bank's fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder as agreed
upon by the Company and such Issuing Bank in the applicable Issuing Bank
Agreement. LC Participation Fees and LC Fronting Fees accrued through and
including the last day of March, June, September and December of each year shall
be payable on the third Business Day following such last day, commencing on the
first such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Facility Commitments terminate and any
such fees accruing after the date on which the Facility Commitments terminate
shall be payable on demand. Any other fees payable to an Issuing Bank pursuant
to this paragraph shall be payable within 10 days after demand.
(c) The Company agrees to pay (i) to the Administrative Agent
for the account of each Lender a participation fee (the "AC Participation Fee")
which shall accrue at the Applicable Rate on such Lender's Applicable Percentage
of the aggregate amount of the Dollar Equivalents of the daily amounts of
outstanding Revolving Alternate Currency Loans, and (ii) to the Administrative
Agent for the account of each Alternate Currency Lender a fronting fee (an "AC
Fronting Fee") which shall accrue at the rate or rates per annum separately
agreed upon between the Company and such Alternate Currency Lender and set forth
in the applicable Alternate Currency Supplement on the aggregate amount of the
Dollar Equivalents of the daily amounts of the outstanding Revolving Alternate
Currency Loans of such Alternate Currency Lender. AC Participation Fees and AC
Fronting Fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on
which the Facility Commitments terminate and any such fees accruing after the
date on which the Facility Commitments terminate shall be payable on demand. AC
Participation Fees shall be payable in dollars and AC Fronting Fees shall be
payable in the applicable Alternate Currency.
(d) The Company agrees to pay to the Administrative Agent, for
its own account, fees in the amounts and payable at the times separately agreed
upon between the Company and the Administrative Agent.
(e) All fees payable hereunder shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). Except as otherwise
provided above, all fees payable under paragraphs (a) through (d) above shall be
paid in dollars (or, in the case of AC Fronting Fees, in the applicable
Alternate Currency) on the dates due, in immediately available funds, to the
Administrative Agent for distribution (i) in the case of Facility Fees, LC
Participation Fees and AC Participation Fees, to the Lenders, (ii) in the case
of LC Fronting Fees, to the applicable Issuing Banks and (iii) in the case of AC
Fronting
<PAGE>
Fees, to the applicable Alternate Currency Lenders. Fees paid
shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising
each ABR Borrowing (including each Swingline Loan) shall bear
interest at a rate per annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall
bear interest (i) in the case of a Eurocurrency Revolving Loan, at a rate per
annum equal to the LIBO Rate for the Interest Period in effect for and the
currency of such Borrowing plus, in the case of Loans other than Revolving
Alternate Currency Loans, the Applicable Rate, or (ii) in the case of a
Eurocurrency Competitive Loan, at a rate per annum equal to the LIBO Rate for
the Interest Period in effect for such Borrowing plus (or minus, as applicable)
the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per
annum equal to the Fixed Rate applicable to such Loan.
(d) The Loans comprising each Local Rate Borrowing shall bear
interest at a rate per annum equal to the applicable Local Rate plus the
Applicable Rate.
(e) Each Special Loan shall bear interest at a rate per annum
agreed upon between the applicable Borrower and Lender.
(f) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by any Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable (or most recently applicable) to
such Loan as provided above or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans as provided above.
(g) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (f) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Availability Period for the
Facility Commitments), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment, (iii) in
the event of any conversion of any Eurocurrency Revolving Loan prior to the end
of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion and (iv) all accrued interest
shall be payable upon termination of the Facility Commitments.
(h) All interest hereunder shall be computed on the basis of a
year of 360 days, except that (i) interest computed by reference to the
Alternate Base Rate at times when the Alternate
<PAGE>
Base Rate is based on the Prime Rate shall be computed on the basis of a year of
365 days (or 366 days in a leap year), (ii) interest on any Loan denominated in
Sterling shall be computed on the basis of a year of 365 days and (iii) interest
computed by reference to a Local Rate shall be computed in accordance with the
applicable Alternate Currency Supplement, and in each case shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day). The applicable Alternate Base Rate or LIBO Rate shall be determined
by the Administrative Agent, and such determination shall be presumed correct
absent manifest error. The applicable Local Rate on Revolving Alternate Currency
Loans shall be determined by the applicable Alternate Currency Lender, and such
determination shall be presumed correct absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If, with
respect to a Eurocurrency Borrowing or Foreign Currency Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate or any other rate to be used in
determining the interest rate applicable to the Loans comprising such Foreign
Currency Borrowing; or
(b) the Administrative Agent is advised by the Required
Lenders (or, (i) in the case of a Eurocurrency Competitive Loan, the Lender that
is required to make such Loan or (ii) in the case of a Revolving Designated
Currency Loan, Revolving Yen Loan or Revolving Alternate Currency Loan, as the
case may be, Designated Currency Lenders, Yen Lenders or Alternate Currency
Lenders, as applicable, having Designated Currency Commitments, Yen Commitments
or Alternate Currency Commitments in the relevant currency, as applicable,
representing at least 51% of the Designated Currency Commitments, Yen
Commitments or Alternate Currency Commitments in such currency, as applicable,
at such time) that the rates at which such deposits in the applicable currency
are being offered will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing; or
(c) in the case of a Foreign Currency Borrowing, the
Administrative Agent determines (which determination shall be presumed correct
absent manifest error) that deposits in the applicable currency are not
generally available, or cannot be obtained by the Foreign Currency Lenders, in
the applicable market;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders or the applicable Foreign Currency Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Administrative Agent notifies
the Company and the Lenders or the applicable Foreign Currency Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing
<PAGE>
as, a Eurocurrency Borrowing shall be ineffective, and any Eurocurrency
Borrowing so requested to be continued shall, at the option of the Company, be
repaid on the last day of the then current Interest Period with respect thereto
or be converted to an ABR Borrowing denominated in dollars at the Exchange Rate
determined by the Administrative Agent in accordance with this Agreement on the
last day of the then current Interest Period with respect thereto, (ii) if any
Borrowing Request requests a Eurocurrency Revolving Dollar Borrowing, such
Borrowing shall be made as an ABR Borrowing and (iii) any request by any
Borrower for a Eurocurrency Competitive Borrowing or a Foreign Currency
Borrowing shall be ineffective; provided that if the circumstances giving rise
to such notice do not affect all the Lenders, then requests for Eurocurrency
Competitive Borrowings may be made to Lenders that are not affected thereby (and
any pending requests for Eurocurrency Competitive Borrowings shall remain
effective as to such Lenders) and, if the circumstances giving rise to such
notice do not affect all applicable currencies, then requests for Foreign
Currency Borrowings may be made in the currencies that are not affected thereby.
SECTION 2.14. Increased Costs; Illegality
(a) If any Governmental Authority of the jurisdiction of any
currency (or any other jurisdiction in which the funding operations of any
Lender shall be conducted with respect to such currency) shall have in effect
any reserve, liquid asset or similar requirement with respect to any category of
deposits or liabilities customarily used to fund loans in such currency, or by
reference to which interest rates applicable to Loans in such currency are
determined, and the result of such requirement shall be to increase the cost to
such Lender of making or maintaining any Loan in such currency by an amount
deemed by such Lender to be material, and such Lender shall deliver to the
Company a notice requesting compensation under this paragraph and setting forth
the applicable Statutory Reserve Rate, then the Company will pay or cause the
applicable Borrower to pay to such Lender on each Interest Payment Date with
respect to each affected Loan an amount that will compensate such Lender for
such additional cost.
(b) If any Change in Law shall impose on any Lender or any
Issuing Bank or the London interbank market (or any other market in which the
funding operations of such Lender shall be conducted with respect to any
currency) any condition affecting this Agreement or Eurocurrency Loans, Fixed
Rate Competitive Loans or Local Rate Loans made by such Lender or Letters of
Credit (other than any reserve, liquid asset or similar requirement referred to
in paragraph (a) above), and the result thereof shall be to increase the cost to
such Lender of making or maintaining any such Loan or to increase the cost to
such Lender or such Issuing Bank of participating in, issuing or maintaining any
Letter of Credit or to reduce the amount of any sum received or receivable by
such Lender or such Issuing Bank hereunder in respect thereof by an amount
deemed by such Lender or such Issuing Bank, as the case may be, to be material,
then the Company will pay or cause the applicable Borrower to pay to such Lender
or such
<PAGE>
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or such Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(c) If any Lender or any Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital or
on the capital of such Lender's or such Issuing Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender or the Letters of Credit issued by such
Issuing Bank to a level below that which such Lender or such Issuing Bank or
such Lender's or such Issuing Bank's holding company could have achieved but for
such Change in Law (taking into consideration such Lender's or such Issuing
Bank's policies and the policies of such Lender's or such Issuing Bank's holding
company with respect to capital adequacy), then from time to time the Company
will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(d) A certificate of a Lender or an Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or such Issuing Bank
or its holding company, as the case may be, as specified in paragraph (a), (b)
or (c) of this Section shall be delivered to the Company and shall be presumed
correct absent manifest error. The Company shall pay such Lender or such Issuing
Bank, as the case may be, the amount shown as due on any such certificate within
10 days after receipt thereof.
(e) Failure or delay on the part of any Lender or any Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or such Issuing Bank's right to demand such
compensation; provided that the Company shall not be required to compensate a
Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than six months prior to the date that such Lender or
such Issuing Bank, as the case may be, notifies the Company of the Change in Law
giving rise to such increased costs or reductions and of such Lender's or such
Issuing Bank's intention to claim compensation therefor; provided further that,
if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the six-month period referred to above shall be extended to
include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan or Special Loan if the Change in Law that would
otherwise entitle it to such compensation shall have been publicly announced or
be otherwise known to it prior to submission of the Competitive Bid pursuant to
which such Competitive Loan was made or prior to its agreement to make such
Special Loan, as the case may be.
<PAGE>
(g) Notwithstanding any other provision of this Agreement, if,
after the date hereof, (i) any Change in Law shall make it unlawful for any
Lender to make or maintain any Eurocurrency Loan or Foreign Currency Loan or to
give effect to its obligations as contemplated hereby with respect to any
Eurocurrency Loan or Foreign Currency Loan, or (ii) there shall have occurred
any change in national or international financial, political or economic
conditions (including the imposition of or any change in exchange controls, but
excluding conditions otherwise covered by this Section 2.14) or currency
exchange rates which would make it impracticable for the Foreign Currency
Lenders holding a majority in interest of the outstanding Foreign Currency Loans
denominated in the affected currency or the applicable Commitments to make or
maintain Foreign Currency Loans denominated in such currency to, or for the
account of, any Borrower, then, by written notice to the Company and to the
Administrative Agent:
(A) such Lender or Lenders may declare that Eurocurrency Loans
or Foreign Currency Loans (in the affected currency or currencies) will
not thereafter (for the duration of such unlawfulness) be made by such
Lender or Lenders hereunder (or, in the case of Eurocurrency Loans, be
continued for additional Interest Periods) and ABR Loans will not
thereafter (for such duration) be converted into Eurocurrency Loans (in
the affected currency or currencies), whereupon any request for a
Eurocurrency Borrowing or Foreign Currency Borrowing (in the affected
currency or currencies) (or to convert an ABR Borrowing to a
Eurocurrency Borrowing (in the affected currency or currencies) or to
continue a Eurocurrency Borrowing (in the affected currency or
currencies), as the case may be, for an additional Interest Period)
shall, as to such Lender or Lenders only, be deemed a request for an
ABR Loan or a Loan denominated in dollars, as the case may be (or a
request to continue an ABR Loan as such or to convert a Eurocurrency
Loan into an ABR Loan, as the case may be, on the last day of the then
current Interest Period with respect thereto), unless such declaration
shall be subsequently withdrawn; provided that upon any such request by
any such Lender, the Company or the applicable Borrower may repay any
Eurocurrency Loan on the last day of the then current Interest Period
with respect thereto in lieu of converting any such Eurocurrency Loan
into an ABR Loan; and
(B) such Lender may require that all outstanding Eurocurrency Loans
or Foreign Currency Loans (in the affected currency or currencies),
made by it be converted to ABR Loans or Loans denominated in dollars,
as the case may be (unless repaid by the Company or the applicable
Borrower as described below), in which event all such Eurocurrency
Loans or Foreign Currency Loans (in the affected currency or
currencies) shall be converted to ABR Loans or Loans denominated in
dollars, as the case may be, as of the effective date of such notice as
provided in paragraph (h) below and at the Exchange Rate on the date of
such conversion or, at the option of the Company or the applicable
Borrower, repaid on the last day of the
<PAGE>
then current Interest Period with respect thereto or, if earlier, the date on
which the applicable notice becomes effective.
If any Lender shall become aware of any circumstances described in this
paragraph (g), such Lender shall give 10 Business Days' advance notice of any
action such Lender intends to take pursuant to (A) or (B) above to the extent
practicable.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurocurrency Loans or Foreign Currency Loans that would have been made
by such Lender or the converted Eurocurrency Loans or Foreign Currency Loans of
such Lender shall instead be applied to repay the ABR Loans or Loans denominated
in dollars, as the case may be, made by such Lender in lieu of, or resulting
from the conversion of, such Eurocurrency Loans or Loans denominated in dollars,
as the case may be.
(h) For purposes of this Section 2.14, a notice to the Company
by any Lender shall be effective as to each Eurocurrency Loan or Foreign
Currency Loan made by such Lender, if lawful, on the last day of the Interest
Period currently applicable to such Eurocurrency Loan; in all other cases such
notice shall be effective on the date of receipt thereof by the Company.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurocurrency Loan, Fixed Rate Loan or Local Rate
Loan bearing interest at a fixed rate for the applicable Interest Period other
than on the last day of an Interest Period applicable thereto (including as a
result of an Event of Default), (b) the conversion of any Eurocurrency Loan
other than on the last day of the Interest Period applicable thereto, (c) the
conversion of any Foreign Currency Loan to a dollar denominated Loan pursuant to
any Section of this Agreement, (d) the failure to borrow, convert, continue or
prepay any Eurocurrency Loan, Fixed Rate Loan or Local Rate Loan bearing
interest at a fixed rate on the date specified in any notice delivered pursuant
hereto (regardless of whether such notice is permitted to be revoked under
Section 2.10(d) and is revoked in accordance herewith), (e) the failure to
borrow any Eurocurrency Competitive Loan after accepting the Competitive Bid to
make such Loan, or (f) the assignment of any Eurocurrency Loan, Fixed Rate Loan
or Local Rate Loan bearing interest at a fixed rate other than on the last day
of the Interest Period applicable thereto as a result of a request by the
Company pursuant to Section 2.18, then, in any such event, the Company shall
compensate each Lender for the loss, cost and expense attributable to such event
(and in the case of any conversion of Foreign Currency Loans to dollar Loans,
such loss, cost or expense shall also include any loss, cost or expense
sustained by a Foreign Currency Lender as a result of such conversion). In the
case of a Eurocurrency Loan, the loss to any Lender attributable to any such
event shall be equal, except as otherwise provided in the final parenthetical in
the preceding sentence, to an amount determined by such Lender to be equal to
the excess, if any, of (i) the amount of interest that
<PAGE>
such Lender would pay for a deposit equal to the principal amount of such Loan
(and in the same currency as such Loan) for the period from the date of such
payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert
or continue, the duration of the Interest Period that would have resulted from
such borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the LIBO Rate for such Interest Period, over (ii) the
amount of interest that such Lender would earn on such principal amount for such
period if such Lender were to invest such principal amount for such period at
the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for deposits in the same currency from other banks in the eurodollar
market at the commencement of such period. A certificate of any Lender setting
forth any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Company and shall be presumed correct
absent manifest error. The Company shall pay such Lender the amount shown as due
on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or an account
of any obligation of any Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if any
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) such Borrower shall make
such deductions and (iii) such Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The relevant Borrower shall indemnify the Administrative
Agent, each Lender and each Issuing Bank, within 10 days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or such Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of any
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section), and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the
Company by a Lender or an Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or an Issuing Bank, shall be conclusive
absent manifest error.
<PAGE>
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) At the request of the Company, any Foreign Lender that is
entitled to an exemption from or reduction of withholding tax with respect to
payments under this Agreement pursuant to the law of the Relevant Jurisdiction
or any treaty to which the Relevant Jurisdiction is a party shall deliver to the
Company (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Company as will
permit such payments to be made without withholding or at a reduced rate.
(f) If the Company and a Lender or an Issuing Bank (or, in the
case of a payment to the Administrative Agent, the Administrative Agent) (each,
a "Payee") agree that an Indemnified Tax paid by a Borrower under paragraph (a)
or (c) above with respect to payments by such Borrower to such Payee should more
likely than not be refunded by the relevant Governmental Authority under
applicable law, such Payee shall, at the request of the Company and at the
Company's expense, take such steps as are necessary or appropriate to obtain a
refund of such Indemnified Tax. If any Payee receives a refund of any
Indemnified Tax paid by any Borrower under paragraph (a) or (c) above
(including, without limitation, a refund received pursuant to the preceding
sentence), the amount of such refund (together with any interest received from
the Governmental Authority thereon) shall be paid to such Borrower.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Setoffs. (a) Except as set forth with respect to payments of principal of or
interest on Foreign Currency Loans in Schedule 2.17 or in any Alternate Currency
Supplement or as agreed by the applicable Borrowers and Special Loan Lenders
with respect to Special Loans, each Borrower shall make each payment required to
be made by it hereunder (whether of principal, interest or fees or under Section
2.14, 2.15 or 2.16, or otherwise) from a Payment Location in the United States
prior to 1:00 p.m., New York City time, on the date when due, in immediately
available funds, without setoff or counterclaim. Any amounts received after such
time (or any other applicable time set forth with respect to Foreign Currency
Loans in Schedule 2.17 or in any Alternate Currency Supplement or agreed by the
applicable Borrowers and Special Loan Lenders with respect to Special Loans) on
any date may, in the discretion of the Applicable Agent (or, in the case of a
Competitive Loan, the applicable Lender), be deemed to have been received on the
next succeeding Business Day for purposes of calculating interest thereon. All
such payments shall be made (i) in the case of amounts due in dollars, to the
Applicable Agent at its offices at 270 Park Avenue, New York, New York, (ii) in
the
<PAGE>
case of amounts due in Yen, to the Applicable Agent at its offices at Akasaka
Park Building, 2-20 Akasaka 5-chome, Minato-ku Tokyo 107, Japan and (iii) in the
case of amounts due in any Foreign Currency other than Yen, to the Applicable
Agent at its offices at Trinity Tower, 9 Thomas More Street, London, England
E19YT, or at such other office as shall be specified for such currency by the
Applicable Agent or in any applicable Alternate Currency Supplement), except
that payments to be made directly to an Issuing Bank, the Swingline Lender or an
Alternate Currency Lender as expressly provided herein, payments to the Special
Loan Lenders in respect of Special Loans and payments pursuant to Sections 2.14,
2.15, 2.16 and 10.03 shall be made directly to the Persons entitled thereto. The
Applicable Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension at the same rate then
in effect with respect thereto. All payments hereunder (whether of principal,
interest or otherwise) shall be made in the applicable currency specified
elsewhere herein or, if no currency is specified, in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, to
pay interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, or any of its participations in LC
Disbursements, Swingline Loans or Alternate Currency Loans in any currency,
resulting in such Lender obtaining a proportionately greater reduction of its
Revolving Credit Exposure than the reduction obtained by any other Lender, then
the Lender obtaining such greater reduction shall purchase (for cash at face
value) participations in the Revolving Loans or participations in LC
Disbursements, Swingline Loans or Alternate Currency Loans, as the case may be,
of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with their
Revolving Credit Exposures; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by any Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for
<PAGE>
the assignment of or sale of a participation in any of its Loans to any assignee
or participant, other than to any Borrower or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). Each
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against such Borrower rights of
setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of such Borrower in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice
from the Company or the relevant Borrower prior to the date on which any payment
is due to the Administrative Agent for the account of the Lenders or the Issuing
Banks hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Banks, as the case may be, the amount
due. In such event, if such Borrower has not in fact made such payment, then
each of the Lenders or the Issuing Banks, as the case may be, severally agrees
to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or such Issuing Bank with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, (i) in the case of a
Borrowing in dollars, at the Federal Funds Effective Rate and (ii) in the case
of a Borrowing in a currency, at the rate reasonably determined by the
Administrative Agent to be the cost to it of funding such amount.
(e) If any Lender shall fail to make any payment required to
be made by it hereunder, then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts thereafter
received by the Administrative Agent for the account of such Lender to satisfy
such Lender's obligations hereunder until all such unsatisfied obligations are
fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation or delivers a notice under Section 2.14,
or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be economically disadvantageous to such Lender.
The Company hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
<PAGE>
(b) If any Lender requests compensation or delivers a notice
under Section 2.14, or if any Borrower is required to pay any additional amount
to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Lender defaults in its obligation to fund
Loans hereunder, then the Company may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 10.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
or Special Loans held by it) to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment);
provided that (i) if the assignee is not a Lender, the Company shall have
received the prior written consent of the Administrative Agent (and, if a
Facility Commitment is being assigned, each Issuing Bank, the Swingline Lender
and each Alternate Currency Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans (other than Competitive Loans and Special
Loans) and funded participations in LC Disbursements and Swingline Loans,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Company (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation
under Section 2.14 or payments required to be made pursuant to Section 2.16,
such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling such Borrower to require such assignment and delegation
cease to apply.
SECTION 2.19. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Company may, at any time and from
time to time during the Availability Period with respect to the Facility
Commitments, request the issuance for its own account (or the amendment, renewal
or extension) of Letters of Credit denominated in dollars or in LC Currencies,
in form reasonably acceptable to the Administrative Agent and the applicable
Issuing Bank. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any letter of credit
application or other agreement submitted by the Company to, or entered into by
the Company with, any Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control. Notwithstanding any language in
a letter of credit application or other agreement, no Lien shall be granted by
the Company or any Subsidiary pursuant to such application or agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter
of Credit), the Company shall hand deliver or telecopy (or
transmit by electronic communication, if arrangements for doing so
<PAGE>
have been approved by the applicable Issuing Bank) to the applicable Issuing
Bank and the Administrative Agent, reasonably in advance of the requested date
of issuance, amendment, renewal or extension, a letter of credit application on
the applicable Issuing Bank's standard form requesting the issuance of a Letter
of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Company shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $50,000,000, (ii) no Lender's Revolving Credit
Exposure shall exceed its Facility Commitment and (iii) the aggregate amount of
the Lenders' Revolving Credit Exposures, Competitive Loan Exposures and Special
Loan Exposures shall not exceed the aggregate amount of the Lenders' Facility
Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, the date one year after the date of such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity
Date; provided that subject to the foregoing, any Letter of Credit may, at the
request of the applicant, be automatically renewed on each anniversary of the
issuance thereof for an additional period of one year (but not beyond the
Maturity Date) unless the applicable Issuing Bank shall give at least ninety
days prior written notice to the Company and (unless otherwise agreed to by the
applicant) not more than fifteen days prior written notice to the beneficiary of
such Letter of Credit that such Letter of Credit will not be renewed, in which
case such Letter of Credit may, at the option of the applicant, provide that the
beneficiary of the Letter of Credit will be entitled to draw on such Letter of
Credit at any time during the fifteen days prior to the expiration thereof.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the applicable Issuing Bank or the Lenders,
the applicable Issuing Bank hereby grants to each Lender, and each Lender hereby
acquires from the applicable Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Applicable Percentage from time to time of the
aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account
of the applicable Issuing Bank, such Lender's Applicable Percentage
<PAGE>
(determined as of the date of the notice from the Administrative Agent referred
to in paragraph (e) of this Section) of each LC Disbursement made by such
Issuing Bank and not reimbursed by the Company on the date due as provided in
paragraph (e) of this Section (converted to a dollar-denominated Obligation as
contemplated in such paragraph (e)), or of any reimbursement payment required to
be refunded to the Company for any reason. Each Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of a Default
or reduction or termination of the Facility Commitments, and that each such
payment shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit issued by it, the Company shall
reimburse such LC Disbursement by paying to the Administrative Agent an amount
equal to such LC Disbursement, in the currency in which such LC Disbursement
shall have been made, not later than (i) in the case of an LC Disbursement
denominated in dollars, 12:00 noon, New York City time, on the date that such LC
Disbursement is made, if the Company shall have received notice of such LC
Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Company prior to such time on such date,
then not later than 12:00 noon, New York City time, on (A) the Business Day that
the Company receives such notice, if such notice is received prior to 10:00
a.m., New York City time, on the day of receipt, or (B) the Business Day
immediately following the day that the Company receives such notice, if such
notice is not received prior to such time on the day of receipt or (ii) in the
case of an LC Disbursement denominated in an LC Currency, the time specified in
Schedule 2.19 with respect to such LC Currency. If the Company fails to make
such payment when due then, upon notice from the applicable Issuing Bank to the
Company and the Administrative Agent, the amount payable shall without further
action be converted into an obligation denominated in dollars at the applicable
Exchange Rate on the date of such conversion, as determined by the
Administrative Agent in accordance with the terms hereof, and the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Company in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender shall
pay to the Administrative Agent in dollars its Applicable Percentage of the
payment then due from the Company, in the same manner as provided in Section
2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Company pursuant to this paragraph,
the Administrative Agent shall distribute such payment to the applicable Issuing
Bank or,
<PAGE>
to the extent that Lenders have made payments pursuant to this paragraph to
reimburse the applicable Issuing Bank, then to such Lenders and such Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse an Issuing Bank for any LC Disbursement shall not
constitute a Loan and shall not relieve the Company of its obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The Company's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever except as provided in the applicable Issuing Bank Agreement with the
applicable Issuing Bank. The applicable Issuing Bank Agreement shall set forth
the standards of care and exculpatory provisions applicable to an Issuing Bank
in the performance of its duties.
(g) Disbursement Procedures. An Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit issued by it. Such Issuing Bank
shall promptly notify the Administrative Agent and the Company by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Company of its
obligation to reimburse such Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(h) Interest. If an Issuing Bank shall make any LC
Disbursement, then, unless the Company shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Company reimburses such LC Disbursement,
at (i) in the case of an LC Disbursement denominated in dollars, the rate per
annum then applicable to ABR Revolving Loans and (ii) in the case of an LC
Disbursement denominated in any LC Currency, the rate per annum specified for
such LC Currency in Schedule 2.19 until such LC Disbursement shall have been
converted into an obligation denominated in dollars as provided in paragraph (e)
above, and thereafter the rate per annum then applicable to ABR Revolving Loans;
provided that, at all times after the Company fails to reimburse such LC
Disbursement when due pursuant to paragraph (e) of this Section, Section 2.12(g)
shall apply. Interest accrued pursuant to this paragraph shall be for the
account of the applicable Issuing Bank, except that interest accrued on and
after the date of payment by any Lender pursuant to paragraph (e) of this
Section to reimburse the applicable Issuing Bank shall be for the account of
such Lender to the extent of such payment.
(i) Replacement of an Issuing Bank. An Issuing Bank
may be replaced at any time by written agreement among the
Company, the Administrative Agent, the replaced Issuing Bank and
the successor Issuing Bank. The Administrative Agent shall notify
<PAGE>
the Lenders of any such replacement of an Issuing Bank. At the time any such
replacement shall become effective, the Company shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to Section
2.11(b). From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of the replaced
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous and other Issuing Banks, as the context shall require. After
the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of an Issuing Bank under this Agreement with respect to Letters of Credit issued
by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.
(j) Cash Collateralization. If the Commitments shall be
terminated or the maturity of the Loans accelerated pursuant to Article VII, on
the Business Day that the Company receives notice from the Administrative Agent
or the Required Lenders (or, if the maturity of the Loans has been accelerated,
Lenders with LC Exposures representing at least 51% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this paragraph, the Company
shall deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash equal
to the LC Exposure as of such date plus any accrued and unpaid interest thereon;
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to the Company described in clause (h) or (i) of
Article VII. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Company
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account. Other
than any interest earned on the investment of such deposits, which investments
shall be made at the option and sole discretion of the Administrative Agent and
at the Company's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Administrative Agent to
reimburse each Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for the satisfaction
of the reimbursement obligations of the Company for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Lenders with LC Exposure representing at least 51% of the total LC
Exposure), be applied to satisfy other obligations of the Company under this
Agreement. If the Company is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as
<PAGE>
aforesaid) shall be returned to the Company within three Business Days after all
Events of Default have been cured or waived.
SECTION 2.20. Notice of Revolving Alternate Currency Loans and
Special Loans. (a) The applicable Borrower and Alternate Currency Lender shall
promptly notify the Applicable Agent of the date, principal amount, interest
rate, Interest Period, if applicable, Interest Payment Dates and Alternate
Currency of each Revolving Alternate Currency Loan made by such Alternate
Currency Lender to such Borrower and (b) the date and amount of any repayment,
including prepayment, of each such Revolving Alternate Currency Loan.
(b) The applicable Borrower and Lender of a Special Loan made
pursuant to Section 2.02(b) shall promptly notify the Administrative Agent of
(i) the date, principal amount, interest rate, Interest Period, Interest Payment
Dates and Alternate Currency of each Special Loan made by such Lender to such
Borrower and (ii) the date and amount of any repayment, including prepayment or
deemed prepayment, of each such Special Loan.
ARTICLE III
Representations and Warranties
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and
its Material Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
are within the Company's (and, as applicable, each Borrowing Subsidiary's)
corporate powers and have been duly authorized by all necessary corporate and,
if required, stockholder action. This Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company, and each Borrowing Subsidiary Agreement with respect to any
Borrowing Subsidiary (as to which a Borrowing Subsidiary Termination has not
become effective) has been duly executed and delivered by the Company and such
Borrowing Subsidiary and constitutes a legal, valid and binding obligation of
the Borrowing Subsidiary thereunder, in each case enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
<PAGE>
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except for such
consents, approvals, registrations, filings and other actions the failure to
obtain or make could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Company or any of its Subsidiaries or any order of any
Governmental Authority, except for such violations which, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, (c) will not violate or result in a default under any indenture,
agreement or other instrument binding upon the Company or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Company or any of its Subsidiaries, except for such
violations and defaults which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, and (d) will not
result in the creation or imposition of any Lien on any asset of the Company or
any of its Material Subsidiaries. Neither any party to the IJDA nor any
Governmental Authority has claimed in writing that the IJDA is not valid or is
not in full force or effect.
SECTION 3.04. Financial Condition; No Material Adverse Change.
(a) The Company has heretofore furnished to the Lenders its consolidated
statement of financial position and consolidated statements of operations,
shareholders' equity and cash flows as of and for the fiscal year ended December
31, 1997, reported on by Arthur Andersen LLP, independent public accountants.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Company and
its consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP.
(b) The Company has heretofore furnished to the Lenders its
projections (including income statements, balance sheets and cash flow
projections of the Company and Subsidiaries for fiscal years 1998 through 2000,
in each case included in the Confidential Information Memorandum dated March
1998 (the "Confidential Information Memorandum"). It is understood that the
Company makes no representation or warranty concerning such projections with
respect to the anticipated future performance of the Company, except that such
projections were prepared in good faith by the Company, on the basis of
assumptions believed by the management of the Company to be reasonable at the
time.
(c) Since December 31, 1997, there has been no material
adverse change in the business, assets, operations or financial condition, of
the Company and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Company
and its Subsidiaries has good title to, or valid leasehold
<PAGE>
interests in, all its real and personal property material to the business of the
Company and its Subsidiaries, taken as a whole, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Company and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to the business of the Company and its
Subsidiaries taken as a whole, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve this Agreement, any Borrowing Subsidiary Agreement
or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Company nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to be in compliance, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status.
Neither the Company nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (b) a "holding
<PAGE>
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and each of its
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan by an amount that could
reasonably be expected to result in a Material Adverse Effect, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Plans by an amount that could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.11. Disclosure. None of the reports, financial
statements, certificates or other information furnished by or on behalf of any
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or any Borrowing Subsidiary Agreement or delivered
hereunder or thereunder (as modified or supplemented by other information so
furnished), taken as a whole, contains any material misstatement of fact or
omits to state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, the Company
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth as of the
Effective Date a list of all Subsidiaries and Material Subsidiaries and the
percentage ownership interest of the Company therein. As of the Effective Date,
the shares of capital stock of such Subsidiaries will be fully paid and
non-assessable and the shares and other ownership interests indicated by
Schedule 3.12 will be owned by the Company, directly or indirectly, free and
clear of all Liens other than as permitted under Section 6.02.
<PAGE>
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Banks to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) The Administrative Agent shall have received favorable
written opinions (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Ellenore O'Hanrahan, deputy general counsel of the
Company, and Simpson Thacher & Bartlett, counsel for the Company, substantially
in the form of Exhibit B-1 and B-2, respectively, and covering such other
matters relating to the Company, this Agreement or the Transactions as the
Required Lenders shall reasonably request. The Company hereby requests such
counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
the Company, the authorization of the Transactions and any other legal matters
relating to the Company, this Agreement or the Transactions, all in form and
substance reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the Chairman, the President,
a Vice President or a Financial Officer of the Company, confirming compliance
with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) (i) The Existing Credit Agreement and all commitments
thereunder to lend shall have been terminated and all amounts outstanding
thereunder shall have been paid in full and (ii) the Administrative Agent shall
have received evidence satisfactory in form and substance to it demonstrating
such termination and payment; provided that, if agreed to by the Administrative
Agent and the affected lenders under the Existing Credit Agreement, up to
(Y)2,940,00,000 of loans denominated in Yen outstanding under the Existing
Credit Agreement may be treated as Special Loans under this Agreement with
maturities at the ends of the interest periods applicable to such loans on the
Effective Date.
<PAGE>
(f) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Company hereunder.
(g) Dun & Bradstreet Corporation and Cognizant Corporation
shall have executed a letter, satisfactory in form and substance to the
Administrative Agent, confirming treatment of this Agreement as a "bona fide
security or similar agreement" for purposes of Section 2.1(d) of the IJDA.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section
10.02) at or prior to 3:00 p.m., New York City time, on April 30, 1998 (and, in
the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing, and of an Issuing Bank to
issue, amend, renew or extend any Letter of Credit (each such event being called
a "Credit Event") is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Company set
forth in this Agreement and, in the case of a Borrowing by a Borrowing
Subsidiary, the representations and warranties of such Borrowing
Subsidiary in its Borrowing Subsidiary Agreement shall be true and
correct on and as of the date of such Credit Event except to the extent
such representations and warranties expressly relate to an earlier date
in which case such representations and warranties shall be true and
correct on and as of such earlier date.
(b) At the time of and immediately after giving effect to such
Credit Event, no Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the Company and, if applicable, the relevant Borrowing Subsidiary on the date
thereof as to the matters specified in paragraphs (a) and (b) of this Section.
SECTION 4.03. Each Borrowing Subsidiary Credit Event.
The obligation of each Lender to make Loans hereunder to any
Borrowing Subsidiary is subject to the satisfaction of the
following conditions:
(a) The Administrative Agent (or its counsel) shall have
received from each party thereto either (i) a counterpart of such
Borrowing Subsidiary's Borrowing
<PAGE>
Subsidiary Agreement or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page
thereof) that such party has signed a counterpart of such Borrowing Subsidiary
Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion of counsel for such Borrowing Subsidiary (which counsel
shall be reasonably acceptable to the Administrative Agent),
substantially in the form of Exhibit C, and covering such other matters
relating to such Borrowing Subsidiary or its Borrowing Subsidiary
Agreement as the Required Lenders shall reasonably request.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of such Borrowing Subsidiary, the authorization of the
Transactions relating to such Borrowing Subsidiary and any other legal
matters relating to such Borrowing Subsidiary, its Borrowing Subsidiary
Agreement or such Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, the Company covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other
Information. The Company will furnish to the Administrative Agent
(with a copy for each Lender):
(a) within 90 days after the end of each fiscal year of the
Company, its audited consolidated statement of financial position and related
statements of operations, shareholders' equity and cash flows as of the end of
and for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by Arthur Andersen LLP or other
independent public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Company and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied;
(b) within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, its
<PAGE>
consolidated statements of financial position and related statements of
operations, shareholders' equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of its Finan cial Officers as presenting
fairly in all material respects the financial condition and results of
operations of the Company and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a Default
has occurred, specifying the details thereof and any action taken or proposed to
be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.08 and 6.09 and (iii)
stating whether any material change in GAAP or in the application thereof has
occurred since the date of the audited financial statements referred to in
Section 3.04 affecting the Company and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
(d) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default (which
certificate may be limited to the extent required by accounting rules or
guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other material reports, proxy statements and other materials
filed by the Company or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Company to its shareholders generally, as the case may be,
and all material amendments to any of the foregoing; and
(f) promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition
of the Company or any Subsidiary, or compliance with the terms of this
Agreement, as the Administrative Agent may reasonably request.
SECTION 5.02. Notices of Material Events. The Company
will furnish to the Administrative Agent and each Lender prompt
written notice of the following:
(a) the occurrence of any Default;
<PAGE>
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Company or any Subsidiary thereof that could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Company and its Subsidiaries in
an aggregate amount that could reasonably be expected to result in a
Material Adverse Effect; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company
will, and will cause each of its Material Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of the business of the Company and its Subsidiaries,
taken as a whole; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution not prohibited under Section 6.03.
SECTION 5.04. Payment of Obligations. The Company will, and
will cause each of its Subsidiaries to, pay its material obligations, including
Tax liabilities, before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Company or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The
Company will, and will cause each of its Subsidiaries to, (a) keep and maintain
all property material to the conduct of the business of the Company and its
Subsidiaries, taken as a whole, in good working order and condition, ordinary
wear and tear excepted, and (b) maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks as are
customarily maintained, in the reasonable judgment of the Company, by companies
engaged in the same or similar businesses operating in the same or similar
locations; provided that any such insurance may be maintained through a program
of self-insurance to the extent consistent with prudent business practice.
<PAGE>
SECTION 5.06. Books and Records; Inspection Rights. The
Company will, and will cause each of its Material Subsidiaries to, keep proper
books of record and account in accordance with GAAP (or, in the case of a
foreign Subsidiary, generally accepted accounting principles in the jurisdiction
of organization of such Foreign Subsidiary). The Company will, and will cause
each of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or, if a Default shall have occurred and be continuing, any
Lender, upon reasonable prior notice, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested.
SECTION 5.07. Compliance with Laws. The Company will, and will
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property (including
ERISA), except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds. The proceeds of the Loans will
be used only for general corporate purposes, including acquisitions. No part of
the proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations U and X.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit shall have expired or terminated and all
LC Disbursements shall have been reimbursed, the Company covenants and agrees
with the Lenders that:
SECTION 6.01. Indebtedness. The Company will not, and
will not permit any Subsidiary to, create, incur, assume or permit
to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set
forth in Schedule 6.01;
(b) Indebtedness created hereunder;
(c) Guarantees by the Company of any Indebtedness of
any Subsidiary permitted hereunder;
(d) Guarantees by any Subsidiary of any Indebtedness of
any other Subsidiary permitted hereunder;
<PAGE>
(e) Indebtedness of the Company or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on any
such assets prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that (A) such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (e) shall not exceed $25,000,000 at any
time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; provided that (i) such Indebtedness exists at the time such
Person becomes a Subsidiary and is not created in contemplation of or in
connection with such Person becoming a Subsidiary and (ii) the aggregate
principal amount of Indebtedness permitted by this clause (f) shall not exceed
$10,000,000 at any time outstanding;
(g) Indebtedness of the Company to any Subsidiary and of any
Subsidiary to the Company or any other Subsidiary; provided, that any
Indebtedness permitted by this clause (c) shall be (i) evidenced by a promissory
note or any other evidence of such Indebtedness (including entries in their
books and records), which shall have been duly authorized by and constitute a
legal, valid and binding obligation of the obligor, in accordance with its
terms, and (ii) not subordinated to any Indebtedness of the obligor;
(h) Guarantees by the Company existing on the date hereof of
loans and advances to officers of the Company in connection with stock purchases
by such officers of shares of the Company in an aggregate principal amount not
exceeding $1,600,000;
(i) Indebtedness of the Company (in addition to Indebtedness
otherwise permitted hereunder) in an aggregate principal amount not exceeding
$250,000,000 at any time outstanding; and
(j) Indebtedness of the Subsidiaries (in addition to
Indebtedness otherwise permitted hereunder) in an aggregate principal amount not
exceeding $100,000,000 at any time outstanding.
It is understood and agreed that no Event of Default shall be deemed to have
occurred under this Section if, as a result of fluctuations in currency exchange
rates, the Company and/or its Subsidiaries fails to be in compliance with the
dollar limitations set forth in this Section; provided that there are no further
creations, incurrences or assumptions of Indebtedness made in reliance on the
relevant paragraph of this Section during the period that the Company and/or its
Subsidiaries fails to be in
<PAGE>
compliance with the dollar limitations set forth in such
paragraph.
SECTION 6.02. Liens. The Company will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it (including any capital
stock or Indebtedness of a Subsidiary), except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Company or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02; provided
that (i) such Lien shall not apply to any other property or asset of the Company
or any Subsidiary and (ii) such Lien shall secure only those obligations which
it secures on the date hereof and extensions, renewals, refinancings and
replacements thereof that do not increase the outstanding principal amount
thereof (other than by an amount equal to any costs and expenses incurred in
connection with such extension, renewal, refinancing or replacement);
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any property
or asset of any Person that becomes a Subsidiary after the date hereof prior to
the time such Person becomes a Subsidiary or any Lien on any asset of any Person
existing at the time such Person is merged into or consolidated with the Company
or a Subsidiary; provided that (i) such Lien is not created in contemplation of
or in connection with such acquisition or such Person becoming a Subsidiary or
such merger, as the case may be, (ii) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary and (iii) such Lien shall
secure only those obligations which it secures on the date of such acquisition
or the date such Person becomes a Subsidiary or the date of such merger, as the
case may be, and extensions, renewals, refinancings and replacements thereof
that do not increase the outstanding principal amount thereof (other than by an
amount equal to any costs and expenses incurred in connection with such
extension, renewal, refinancing or replacement);
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (A) such security
interests secure only Indebtedness permitted by clause (e) of Section 6.01, (B)
such security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, constructing or improving such fixed or
capital assets and (D) such security interests shall not apply to any other
property or assets of the Borrower or any Subsidiary;
(e) any Lien deemed to exist as a result of any Sale
and Lease-Back Transaction; and
<PAGE>
(f) any Lien to secure Indebtedness or other obligations to
the extent the sum (without duplication) of all amounts secured by Liens which
would not be permitted but for this clause (f) does not exceed $50,000,000;
provided that no Event of Default shall be deemed to have occurred under this
paragraph if, as a result of fluctuations in currency exchange rates, the
Company and/or its Subsidiaries fails to be in compliance with the dollar
limitation set forth in this paragraph unless the Company and/or its
Subsidiaries shall create, incur or permit to exist any Lien in reliance on this
paragraph during the period that the Company and/or its Subsidiaries fails to be
in compliance with the dollar limitation set forth in this paragraph.
SECTION 6.03. Fundamental Changes. (a) The Company will not
merge into or consolidate with any other Person (other than a Subsidiary), or
permit any other Person (other than a Subsidiary) to merge into or consolidate
with it, or sell, transfer, lease or otherwise dispose of (in one transaction or
in a series of transactions) all or substantially all of the assets of the
Company and its consolidated Subsidiaries, taken as a whole, to a Person (other
than a Subsidiary), or all or substantially all of the capital stock of the
consolidated Subsidiaries of the Company, taken as a whole, to a Person (other
than a Subsidiary) (in each case, whether now owned or hereafter acquired),
unless (i) the surviving corporation in any such merger or consolidation or the
Person which acquires all or substantially all of the assets of the Company and
its consolidated Subsidiaries or all or substantially all of the capital stock
of the consolidated Subsidiaries of the Company shall be a corporation organized
and existing under the laws of the United States of America, any state thereof
or the District of Columbia (the "Successor Corporation") and shall expressly
assume, by amendment to this Agreement executed by the Company, the Successor
Corporation and the Administrative Agent, the due and punctual payment of the
principal of and interest on the Loans and LC Disbursements and all other
amounts payable under this Agreement and the payment and performance of every
covenant hereof on the part of the Company to be performed or observed; (ii)
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction, the Company and the Subsidiaries are in compliance,
on a pro-forma basis, with the covenants contained in Sections 6.08 and 6.09
recomputed as of the last day of the most recently ended fiscal quarter of the
Company, as if such transaction had occurred on the first day of each relevant
period for testing such compliance; (iv) if neither the Company nor the Person
that it is merging into (or that is merging into it), or consolidating with,
shall have been rated by a rating agency prior to such transaction, immediately
after giving effect to such transaction, the Company and the Subsidiaries, on a
pro-forma basis, shall not have a Leverage Ratio in excess of 2.75 to 1.00,
recomputated as of the last day of the most recently ended fiscal quarter of the
Company, as if such transaction had occurred on the first day of such period;
(v) the Company shall have delivered a certificate of a Financial Officer and a
written opinion of counsel reasonably satisfactory to the Administrative
<PAGE>
Agent (who may be counsel to the Company), each stating that such transaction
and amendment comply with this Section and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries on the date
hereof and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Company will not, and will not permit any of its Subsidiaries
to, purchase or acquire (including pursuant to any merger with any Person that
was not a Wholly Owned Subsidiary prior to such merger) from any Person (other
than the Company or any of its Subsidiaries) any capital stock, other equity
interests, evidences of indebtedness or other securities (including the purchase
or acquisition of any option, warrant or other right to acquire any of the
foregoing for consideration) of, make any loans or advances to, Guarantee any
Indebtedness of, or make any capital contribution to, any other Person (other
than the Company or any of its Subsidiaries), or purchase or otherwise acquire
(in one transaction or a series of transactions) any assets of any other Person
constituting a business unit or purchase or acquire any capital stock of a
Subsidiary from a Person (other than the Company or any of its Subsidiaries) (an
"Investment") unless, after giving effect to such Investment (i) no Default or
Event of Default has occurred and is continuing or would result therefrom; (ii)
the Company and the Subsidiaries are in compliance on a pro- forma basis, after
giving effect to such Investment, with the covenants contained in Sections 6.08
and 6.09 recomputed as of the last day of the most recently ended fiscal quarter
of the Company, as if such Investment had occurred on the first day of each
relevant period for testing such compliance; and (iii) in the case of
Investments in excess of $50,000,000, the Company has delivered to the
Administrative Agent notice of such Investment. For purposes of this Section,
(x) Permitted Investments and payments made in respect of earn-out provisions
shall not be deemed Investments and (y) the exercise of any option, warrant or
other similar right shall constitute an Investment at the time such exercise
occurs.
SECTION 6.05. Transactions with Affiliates. The Company will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) on terms and conditions not less favorable to the
Company or such Subsidiary than would prevail in an arm's- length transaction
(considering such transactions and all other related transactions as a whole)
and (b) transactions between or among the Company and its Subsidiaries.
SECTION 6.06. Restrictive Agreements. The Company
will not, and will not permit any of its Material Subsidiaries or
<PAGE>
Borrowing Subsidiaries to, directly or indirectly enter into, incur or permit to
exist any agreement or other arrangement that prohibits, restricts or imposes
any condition upon (a) the ability of the Company or any such Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any such Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Company or any other Subsidiary or to Guarantee Indebtedness of
the Company or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by this Agreement, (ii)
the foregoing shall not apply to restrictions and conditions existing on the
date hereof and identified on Schedule 6.06 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof, (vi) the foregoing shall not apply to customary transfer
restrictions, rights of first refusal, restrictions on Liens, Indebtedness or
Guarantees of Indebtedness and restrictions on dividends in shareholders',
partnership and other similar agreements in existence on the date hereof or
consistent with past practice, (vii) the foregoing shall not apply to customary
restrictions contained in agreements governing Indebtedness of any Subsidiary
that is prepayable at the option of such Subsidiary so long as (A) such
restrictions do not prohibit, restrict or impose any condition upon the ability
of a Borrower to create, incur or permit to exist any Lien upon any of its
property or assets to secure its obligations hereunder and under its Borrowing
Subsidiary Agreement, if applicable, (B) such restrictions do not prohibit,
restrict or impose any condition (other than prior notice) upon the ability of
such Subsidiary to make or repay loans or advances to the Company or any other
Borrower and (C) no such agreement prohibits, restricts or imposes conditions on
the ability of a Subsidiary to pay dividends or distributions with respect to
any shares of its capital stock unless any Indebtedness owed to such Subsidiary
by a Borrower (x) is subordinated to such Borrower's obligations hereunder and
under its Borrowing Subsidiary Agreement, if applicable, and (y) matures, and
may not be repaid in whole or in part until, after the Maturity Date and (viii)
clause (a) of the foregoing shall not apply to customary restrictions in
agreements governing Indebtedness of the Company so long as such restrictions do
not prohibit, restrict or impose any condition on the ability of a Borrower to
incur, create or permit to exist any Lien securing obligations hereunder or
under any Borrowing Subsidiary Agreement to which such Borrower is party.
<PAGE>
SECTION 6.07. Certain Agreement. The Company will not, and
will not permit any of its Subsidiaries to, amend, waive or modify the IJDA, if
such amendment, waiver or modification (individually or in combination with
other amendments, waivers and modifications) could reasonably be expected to
result in a material adverse effect on (a) the business, assets, operations or
financial condition of the Company or (b) the rights of or remedies of the
Lenders under this Agreement.
SECTION 6.08. Leverage Ratio. The Leverage Ratio will
not exceed 3.75 to 1.00 at any time.
SECTION 6.09. Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters of the Company
will not be less than 1.25 to 1.00.
SECTION 6.10. Borrowing Subsidiaries. If the Company ceases to
own 80% of a Borrowing Subsidiary, the Company shall, within 10 days after an
officer of the Company becomes aware of such cessation, cause such Subsidiary to
cease be a Borrowing Subsidiary pursuant to a Borrowing Subsidiary Termination
and to prepay all Loans made to it and outstanding at such time.
ARTICLE VII
Events of Default
If any of the following events shall occur and be continuing:
(a) any Borrower shall fail to pay any principal of any Loan
of such Borrower or the Company shall fail to pay any reimbursement obligation
in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan of
such Borrower or any fee or any other amount (other than an amount referred to
in clause (a) of this Article) payable by such Borrower under this Agreement,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or
on behalf of the Company or any Subsidiary in or in connection with this
Agreement, any Borrowing Subsidiary Agreement or any amendment or modification
hereof or thereof, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with this Agreement, any
Borrowing Subsidiary Agreement or any amendment or modification hereof or
thereof, shall prove to have been incorrect in any material respect when made or
deemed made;
<PAGE>
(d) the Company shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02(a), 5.03 (with respect to the
Company's existence) or 5.08 or in Article VI;
(e) the Company shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement or any Borrowing Subsidiary
Agreement (other than those specified in clause (a), (b), (c), (d) or (m) of
this Article), and such failure shall continue unremedied for a period of 30
days after notice thereof from the Administrative Agent (given at the request of
any Lender) to the Company;
(f) the Company or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable
(after giving effect to any applicable grace periods);
(g) any event or condition shall occur that results in any
Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or agent
on its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to (x)
secured Indebtedness that becomes due solely as a result of the voluntary sale
or transfer of the property or assets securing such Indebtedness or (y) any
Indebtedness that becomes due as a result of the issuance of capital stock, the
incurrence of Indebtedness or the sale of assets so long as such event shall not
have resulted in an event of default with respect to such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Company or any Material Subsidiary or its debts,
or of a substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in effect
or (ii) the appointment of a receiver, trustee, custodian, seques trator,
conservator or similar official for the Company or any Material Subsidiary or
for a substantial part of its assets, and, in any such case, such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving
or ordering any of the foregoing shall be entered;
(i) the Company or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a
<PAGE>
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Company or any Material Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit
of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Company or any Material Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its debts as
they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $15,000,000 shall be rendered against the Company,
any Subsidiary or any combination thereof and the same shall remain unpaid or
undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action (which shall not be effectively stayed)
shall be legally taken by a judgment creditor to attach or levy upon any assets
of the Company or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the Company and
its Subsidiaries in an aggregate amount that could reasonably be expected to
result in a Material Adverse Effect;
(m) the Guarantee of the Company hereunder shall not be
(or shall be claimed by the Company or any Subsidiary not to be)
valid or in full force and effect;
(n) the Company shall fail to observe or perform any material
covenant, condition or agreement contained in the IJDA where such failure could
result in the loss by the Company of material rights under the IJDA, or the IJDA
shall not be valid or in full force and effect;
(o) a Change in Control shall occur; or
(p) (i) the Company shall have merged or consolidated with any
Person, (ii) either the Company or the Person with which it is merging or
consolidating shall at the time of such merger or consolidation have been rated
by a rating agency and (iii) the Successor Corporation shall not have in effect
an investment grade rating from Moody's and/or S&P on the 90th day following
such transaction;
then, and in every such event (other than an event with respect to any Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall
<PAGE>
terminate immediately, (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrowers accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
each Borrower and (iii) require cash collateral as contemplated by Section
2.19(j); and in case of any event with respect to the Company described in
clause (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrowers accrued hereunder,
shall automatically become due and payable and the Company shall automatically
be required to provide cash collateral in respect of outstanding Letters of
Credit, without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by each Borrower; and in the case of any event with
respect to any Borrowing Subsidiary described in clause (h) or (i) of this
Article, (i) the eligibility of such Borrowing Subsidiary or any other Borrowing
Subsidiary or the Company to borrow shall thereupon terminate and (ii) the Loans
of such Borrowing Subsidiary shall become immediately due and payable, together
with accrued interest thereon and all fees and other obligations thereunder of
such Borrowing Subsidiary accrued thereunder, without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Borrowing Subsidiary.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms hereof, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is
<PAGE>
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Company or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by a
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any Borrowing
Subsidiary Agreement, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any Borrowing
Subsidiary Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent. The Administrative Agent shall not be responsible for the
aggregate amount of the Lenders' Revolving Credit Exposures, Competitive Loan
Exposures and Special Loan Exposures exceeding the aggregate amount of the
Lenders' Facility Commitments as a result of not having received notice of a
Special Loan or Revolving Alternate Currency Loan.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for any Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers through their
<PAGE>
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such subagent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the Company.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Company, to appoint a successor (and, at any time when no
Default shall have occurred and is continuing, with the prior written consent of
the Company, which consent shall not be unreasonably withheld). If no successor
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf
of the Lenders and the Issuing Banks, appoint a successor Administrative Agent
which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.03 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
<PAGE>
ARTICLE IX
Guarantee
In order to induce the Lenders to extend credit and the
Issuing Banks to extend Letters of Credit hereunder, the Company hereby
irrevocably and unconditionally guarantees, as a primary obligor and not merely
as a surety, the Obligations. The Company further agrees that the due and
punctual payment of the Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and that it will remain bound
upon its Guarantee hereunder notwithstanding any such extension or renewal of
any Obligation.
The Company waives presentment to, demand of payment from and
protest to any Borrowing Subsidiary of any of the Obligations, and also waives
notice of acceptance of its obligations and notice of protest for nonpayment.
The obligations of the Company hereunder shall not be affected by (a) the
failure of any Lender or the Administrative Agent to assert any claim or demand
or to enforce any right or remedy against any Borrowing Subsidiary under the
provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Agreement, any
Borrowing Subsidiary Agreement or any other agreement; or (c) the failure of any
Lender to exercise any right or remedy against any Borrowing Subsidiary.
The Company further agrees that its agreement hereunder
constitutes a promise of payment when due (whether or not any bankruptcy or
similar proceeding shall have stayed the accrual or collection of any of the
Obligations or operated as a discharge thereof) and not merely of collection,
and waives any right to require that any resort be had by any Lender to any
balance of any deposit account or credit on the books of any Lender in favor of
any Borrower or any other person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever, by reason of the invalidity, illegality or
unenforceability of the Obligations, any impossibility in the performance of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of the Company hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any Lender to
assert any claim or demand or to enforce any remedy under this Agreement or any
other agreement, by any waiver or modification in respect of any thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or by any other act or omission which may or might in any manner or
to any extent vary the risk of the Company or otherwise operate as a discharge
of the Company or any other Borrower as a matter of law or equity.
<PAGE>
The Company further agrees that its obligations hereunder
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by the Administrative Agent or any Lender upon the
bankruptcy or reorganization of any Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which the Administrative Agent or any Lender may have at law or in
equity against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Obligation when and as the same shall become due, whether
at maturity, by acceleration, after notice of prepayment or otherwise, the
Company hereby promises to and will, upon receipt of written demand by the
Administrative Agent, forthwith pay, or cause to be paid, in cash the amount of
such unpaid Obligation. The Company further agrees that if payment in respect of
any Obligation shall be due in a currency other than dollars and/or at a place
of payment other than New York and if, by reason of any Change in Law,
disruption of currency or foreign exchange markets, war or civil disturbance or
similar event, payment of such Obligation in such currency or at such place of
payment shall be impossible or, in the judgment of any applicable Lender, not
consistent with the protection of its rights or interests, then, at the election
of any applicable Lender, the Company shall make payment of such Obligation in
dollars (based upon the applicable Exchange Rate in effect on the date of
payment) and/or in New York, and shall indemnify such Lender against any losses
or expenses that it shall sustain as a result of such alternative payment.
Upon payment by the Company of any Obligation, each Lender
shall, in a reasonable manner, assign the amount of such Obligation owed to it
and so paid to the Company, such assignment to be pro tanto to the extent to
which the Obligation in question was discharged by the Company, or make such
disposition thereof as the Company shall direct (all without recourse to any
Lender and without any representation or warranty by any Lender).
Upon payment by the Company of any sums as provided above, all
rights of Company against any Borrowing Subsidiary arising as a result thereof
by way of right of subrogation or otherwise shall in all respects be
subordinated and junior in right of payment to the prior indefeasible payment in
full of all the Obligations owed by such Borrowing Subsidiary to the Lenders.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or over night courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
<PAGE>
(a) if to any Borrower, to it in care of the Company at 177
Broad Street, Stamford, CT 60901, Attention of John A.
Forster (Telecopy No. (203) 961-3030;
(b) if to the Administrative Agent, to The Chase
Manhattan Bank, Agent Bank Services Group, One Chase
Manhattan Plaza, 8th Floor, New York, New York 10081,
Attention of Janet Belden (Telecopy No. (212) 552-5658), with
a copy to The Chase Manhattan Bank, 270 Park Avenue, New
York, New York 10017, Attention of Bruce Langenkamp (Telecopy
No. (212) 270-4164);
(c) if to the London Agent, to it at Chase Manhattan
International Limited, Trinity Tower, 9 Thomas More Street,
London, England E19YT Attention of Steve Clark (Telecopy No.
011-44-171-777-2360); with a copy to The Chase Manhattan
Bank, 270 Park Avenue, New York, New York 10017, Attention of
Bruce Langenkamp (Telecopy No. (212) 270-4164);
(d) if to the Japanese Agent, to it at The Chase Manhattan
Bank, Tokyo, Banking Services Department, Akasaka Park Building, 9th
Floor, 2-20 Akasaka 5-chome, Minato-ku Tokyo 107, Japan, Attention of
Naoko Ishizaka (Telecopy No. 011-81-3-5570-7539); with a copy to The
Chase Manhattan Bank, 270 Park Avenue, New York, New York 10017,
Attention Bruce Lagenkamp (Telecopy No. (212) 270-4164);
(e) if to an Issuing Bank, to it at its address (or
telecopy number) set forth in its Issuing Bank Agreement;
(f) if to the Swingline Lender, to The Chase Manhattan
Bank, Agent Bank Services Group, One Chase Manhattan Plaza,
8th Floor, New York, New York 10081, Attention of Janet
Belden (Telecopy No. (212) 552-5658), with a copy to The
Chase Manhattan Bank, 270 Park Avenue, New York,
New York 10017, Attention of Bruce Langenkamp (Telecopy No.
(212) 270-4164); and
(g) if to any other Lender, to it at its address (or
telecopy number) set forth in its Administrative
Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent, any Issuing Bank or any Lender in exercising any right
or power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Banks
<PAGE>
and the Lenders hereunder are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or the issuance of a Letter of Credit shall
not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any Lender or any Issuing Bank may have had notice or
knowledge of such Default at the time.
(b) Neither this Agreement nor any Borrowing Subsidiary
Agreement nor any provision hereof or thereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Company and the Required Lenders or by the Company and the Administrative Agent
with the consent of the Required Lenders (and, in the case of a Borrowing
Subsidiary Agreement, the applicable Borrowing Subsidiary); provided that no
such agreement shall (i) increase any Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender directly affected
thereby (including in connection with any Revolving Alternate Currency Loan, any
reduction described in this subclause (ii) that would affect such Lender given
such Lender's obligation to acquire a participation therein pursuant to Section
2.01(f)), (iii) postpone the scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment without the written
consent of each Lender directly affected thereby (including in connection with
any Revolving Alternate Currency Loan, any postponement, reduction or waiver
described in this subclause (iii) that would affect such Lender given such
Lender's obligation to acquire a participation therein pursuant to Section
2.01(f)), (iv) change Section 2.17(b) or (c) in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change any of the provisions of this Section or the definition
of "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or
make any determination or grant any consent hereunder, without the written
consent of each Lender, (vi) release the Company from, or limit or condition,
its obligations under Article IX, without the written consent of each Lender or
(vii) change any provision of this Agreement or any Borrowing Subsidiary
Agreement in a manner that by its terms (and not merely by virtue of differing
circumstances, Revolving Loan Exposures, Special Loan Exposures or Competitive
Loan Exposures of the Lenders or the amounts of their Commitments) adversely
affects (with a benefit to one Class that does not change the rights of another
not constituting an adverse effect on such other
<PAGE>
Class) the rights of Lenders with Commitments or Loans of any Class differently
than those of Lenders with Commitments or Loans of any other Class without the
prior written consent of Lenders holding a majority in interest of the
outstanding Loans (other than Swingline Loans), LC Disbursements and Swingline
Loans in respect of which the Lenders have made purchased participations and
unused Commitments of the Class adversely affected; provided further that (x) no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder
without the prior written consent of the Administrative Agent, such Issuing Bank
or the Swingline Lender, as the case may be and (y) the consent of the Required
Lenders shall not be required to execute, amend or supplement an Alternate
Currency Supplement, an Increase Notice or the amendment required pursuant to
clause (i) of Section 6.03(a).
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Company shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent and such Affiliates,
in connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement or any Borrowing Subsidiary
Agreement or any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Banks in connection with the issuance, amendment, renewal or extension
of any Letter of Credit or any demand for payment thereunder and (iii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent, any
Lender or any Issuing Bank, including the fees, charges and disbursements of any
counsel for the Administrative Agent, any Lender or any Issuing Bank, in
connection with the enforcement or protection of its rights in connection with
this Agreement or any Borrowing Subsidiary Agreement, including its rights under
this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Company shall indemnify the Administrative Agent, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any Borrowing Subsidiary Agreement or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto or thereto
of their respective obligations hereunder or thereunder, the consummation of the
Transactions or any other transactions contemplated hereby or the proposed use
of the proceeds of Loans made hereunder, (ii) any Loan or Letter of Credit or
the use of
<PAGE>
the proceeds therefrom (including any refusal by an Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Company or any of its
Subsidiaries, or any Environmental Liability related in any way to the Company
or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Company fails to pay any amount
required to be paid by it to the Administrative Agent, an Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, such Issuing Bank or the
Swingline Lender, as the case may be, such Lender's Facility Commitment
Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent, such Issuing Bank or the Swingline Lender in its capacity
as such.
(d) To the extent permitted by applicable law, no Borrower
shall assert, and each Borrower hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any Borrowing Subsidiary Agreement or
any agreement or instrument contemplated hereby or thereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto (including (i) any Borrowing Subsidiaries, (ii) any Affiliate of an
Issuing Bank that issues any Letter of Credit and (iii) any Affiliate of a
Lender that makes any Loan) and their respective successors and assigns
permitted hereby, except that no Borrower may assign or otherwise transfer any
of its rights or obligations hereunder or under any Borrowing Subsidiary
Agreement without the prior written consent of each Lender (and any attempted
assignment or transfer by any 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
<PAGE>
expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the Lenders and the Issuing Banks) (including any Affiliate of an Issuing
Bank that issues any Letter of Credit and any Affiliate of a Lender that makes
any Loan) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Facility Commitment and the Loans at the time owing to it);
provided that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, each of the Company and the Administrative Agent (and, in
the case of an assignment of all or a portion of a Facility Commitment or any
Lender's obligations in respect of its LC Exposure, Swingline Exposure or
Alternate Currency Loan Exposure, each Issuing Bank, the Swingline Lender and
each Alternate Currency Lender, as applicable) must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Facility Commitment, the amount of the Facility Commitment of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Company and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, except that this
clause (iii) shall not apply to rights in respect of outstanding Competitive
Loans or Special Loans, (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the Company otherwise
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing with respect to
the Company. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16 and 10.03). Notwithstanding any other provision of this Agreement, if
any Lender shall assign any of its rights or obligations hereunder to any
assignee (including any Affiliate of such Lender) that, but for this sentence,
would be
<PAGE>
entitled, immediately following such assignment, to claim a greater amount than
such assigning Lender under Section 2.14, 2.15 or 2.16, such assignee shall not
have the right to claim such greater amount; provided, that nothing in this
sentence shall limit the right of any such assignee to make claims (i) for
amounts not in excess of those that could have been claimed by the assigning
Lender, (ii) to the extent such claims arise from one or more Changes in Law, or
from the designation of one or more Borrowing Subsidiaries or Payment Locations,
after the date of such assignment or (iii) to the extent such claims arise from
payments made to such assignee in respect of participations in Alternate
Currency Loans acquired by it pursuant to Section 2.01(f) or in LC Disbursements
acquired by it pursuant to Section 2.19(d).
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrowers shall maintain at one of its offices in The City of New
York a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Facility
Commitment of, and principal amount of the Loans, and LC Disbursements owing to,
each Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Issuing Banks 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 Company, any
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement unless
it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any
Borrower, the Administrative Agent, any Issuing Bank or the
Swingline Lender, sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including
all or a portion of its Facility Commitment and the Loans owing to
it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrowers, the Administrative
Agent, the Issuing Banks 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
<PAGE>
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
10.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, each Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.16 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
Company's prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrowers, to comply with Section
2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the Borrowing
Subsidiary Agreements and the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, any Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Facility Commitments have not expired or terminated. The
provisions of Sections 2.14, 2.15, 2.16 and 10.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the
<PAGE>
Loans, the expiration or termination of the Letters of Credit and Facility
Commitments or the termination of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration; Effective ness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto (excluding any Borrowing
Subsidiaries), and thereafter shall be binding upon and inure to the benefit of
the parties hereto (including any Borrowing Subsidiaries) and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of any Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed in
accordance with and governed by the law of the State of New York.
(b) Each Borrower hereby irrevocably and uncondition
ally submits, for itself and its property, to the nonexclusive
<PAGE>
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, any Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement against any Borrower or its
properties in the courts of any jurisdiction.
(c) Each Borrower hereby irrevocably and uncondi tionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement (including any Borrowing
Subsidiaries) irrevocably consents to service of process in the manner provided
for notices in Section 10.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the
Administrative Agent, the Issuing Banks and the Lenders agrees to
<PAGE>
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 for the benefit of the Company containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Company
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
from a source other than the Company. For the purposes of this Section,
"Information" means all information received from the Company relating to the
Company or its business, other than any such information that is available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Company; provided that, in the case of
information received from the Company after the date hereof, such information is
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 10.13. Interest Rate Limitation. Notwith standing
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated amount,
together with interest thereon at the Federal Funds Effective Rate to the date
of repayment, shall have been received by such Lender.
SECTION 10.14. Conversion of Currencies. (a) If, for
the purpose of obtaining judgment in any court, it is necessary to
<PAGE>
convert a sum owing hereunder in one currency into another currency, each party
hereto (including any Borrowing Subsidiary) agrees, to the fullest extent that
it may effectively do so, that the rate of exchange used shall be that at which
in accordance with normal banking procedures in the relevant jurisdiction the
first currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to be
due hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.14 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
SECTION 10.15. European Economic and Monetary Union. (a)
Definitions. In this Section 10.15 and in each other provision of this Agreement
to which reference is made in this Section 10.15 expressly or impliedly, the
following terms have the meanings given to them in this Section 10.15:
"commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU (at the date of this Agreement
expected to be January 1, 1999) or the date on which circumstances
arise which (in the opinion of the Administrative Agent) have
substantially the same effect and result in substantially the same
consequences as commencement of the third stage of EMU as contemplated
by the Treaty on European Union.
"EMU" means economic and monetary union as contemplated
in the Treaty on European Union.
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a single
or unified European currency (whether known as the euro or otherwise),
being in part the implementation of the third stage of EMU;
"euro" means the single currency of participating
member states of the European Union;
"euro unit" means the currency unit of the euro;
<PAGE>
"national currency unit" means the unit of currency
(other than a euro unit) of a participating member state;
"participating member state" means each state so
described in any EMU legislation; and
"Treaty on European Union" means the Treaty of Rome of March
25, 1957, as amended by the Single European Act 1986 and the Maastricht
Treaty (which was signed at Maastricht on February 7, 1992, and came
into force on November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of paragraphs
(c) to (j) below (inclusive) shall be effective at and from the commencement of
the third stage of EMU, provided, that if and to the extent that any such
provision relates to any state (or the currency of such state) that is not a
participating member state on the commencement of the third stage of EMU, such
provision shall become effective in relation to such state (and the currency of
such state) at and from the date on which such state becomes a participating
member state.
(c) Redenomination and Foreign Currencies. Each obligation
under this Agreement of a party to this Agreement which has been denominated in
the national currency unit of a participating member state shall be
redenominated into the euro unit in accordance with EMU legislation, provided,
that if and to the extent that any EMU legislation provides that following the
commencement of the third stage of EMU an amount denominated either in the euro
or in the national currency unit of a participating member state and payable
within that participating member state by crediting an account of the creditor
can be paid by the debtor either in the euro unit or in that national currency
unit, each party to this Agreement shall be entitled to pay or repay any such
amount either in the euro unit or in such national currency unit.
(d) Loans. Any Loan in the currency of a
participating member state shall be made in the euro unit.
(e) Business Days. With respect to any amount
denominated or to be denominated in the euro or a national
currency unit, any reference to a "Business Day" shall be
construed as a reference to a day (other than a Saturday or
Sunday) on which banks are generally open for business in
(i) London and New York City and
(ii) Frankfurt am Main, Germany (or such principal
financial center or centers in such participating
member state or states as the Administrative Agent
may from time to time nominate for this purpose).
(f) Payments to the Administrative Agent.
Sections 2.06 and 2.17 shall be construed so that, in relation to
the payment of any amount of euro units or national currency
<PAGE>
units, such amount shall be made available to the Administrative Agent in
immediately available, freely transferable, cleared funds to such account with
such bank in Frankfurt am Main, Germany (or such other principal financial
center in such participating member state as the Administrative Agent may from
time to time nominate for this purpose) as the Administrative Agent shall from
time to time nominate for this purpose.
(g) Payments by the Administrative Agent to the Lenders. Any
amount payable by the Administrative Agent to the Lenders under this Agreement
in the currency of a participating member state shall be paid in the euro unit.
(h) Payments by the Administrative Agent Generally. With
respect to the payment of any amount denominated in the euro or in a national
currency unit, the Administrative Agent shall not be liable to any Borrower or
any of the Lenders in any way whatsoever for any delay, or the consequences of
any delay, in the crediting to any account of any amount required by this
Agreement to be paid by the Administrative Agent if the Administrative Agent
shall have taken all relevant steps to achieve, on the date required by this
Agreement, the payment of such amount in immediately available, freely
transferable, cleared funds (in the euro unit or, as the case may be, in a
national currency unit) to the account with the bank in the principal financial
center in the participating member state which such Borrower or, as the case may
be, any Lender shall have specified for such purpose. In this paragraph (h),
"all relevant steps" means all such steps as may be prescribed from time to time
by the regulations or operating procedures of such clearing or settlement system
as the Administrative Agent may from time to time determine for the purpose of
clearing or settling payments of the euro.
(i) Basis of Accrual. If the basis of accrual of interest or
fees expressed in this Agreement with respect to the currency of any state that
becomes a participating state shall be inconsistent with any convention or
practice in the London Interbank Market or, as the case may be, the Paris
Interbank Market for the basis of accrual of interest or fees in respect of the
euro, such convention or practice shall replace such expressed basis effective
as of and from the date on which such state becomes a participating member
state; provided, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(j) Rounding and Other Consequential Changes. Without
prejudice and in addition to any method of conversion or rounding prescribed by
any EMU legislation and without prejudice to the respective liabilities for
indebtedness of any Borrower to the Lenders and the Lenders to any Borrower
under or pursuant to this Agreement:
(i) each reference in this Agreement to a minimum amount (or
an integral multiple thereof) in a national currency unit to be paid to
or by the Administrative Agent
<PAGE>
shall be replaced by a reference to such reasonably comparable and convenient
amount (or an integral multiple thereof) in the euro unit as the Administrative
Agent may from time to time specify; and
(ii) except as expressly provided in this Section 10.15, each
provision of this Agreement shall be subject to such reasonable changes
of construction as the Administrative Agent may from time to time
reasonably specify to be necessary or appropriate to reflect the
introduction of or changeover to the euro in participating member
states in accordance with customary practices in the market.
SECTION 10.16. Borrowing Subsidiaries. On or after the
Effective Date, the Company may designate any Subsidiary of the Company (of
which the Company owns or Controls shares representing at least 80% of the
ordinary voting power of the issued and outstanding capital stock of such
Subsidiary) as a Borrowing Subsidiary by delivery to the Administrative Agent of
a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company,
and upon such delivery such Subsidiary shall for all purposes of this Agreement
be a Borrowing Subsidiary and a party to this Agreement until the Company shall
have executed and delivered to the Administrative Agent a Borrowing Subsidiary
Termination with respect to such Subsidiary, whereupon such Subsidiary shall
cease to be a Borrowing Subsidiary and a party to this Agreement.
Notwithstanding the preceding sentence, no Borrowing Subsidiary Termination will
become effective as to any Borrowing Subsidiary at a time when any principal of
or interest on any Loan to such Borrowing Subsidiary shall be outstanding
hereunder; provided that such Borrowing Subsidiary Termination shall be
effective to terminate such Borrowing Subsidiary's right to make further
Borrowings under this Agreement. As soon as practicable upon receipt of a
Borrowing Subsidiary Agreement, the Administrative Agent shall send a copy
thereof to each Lender. Each Borrowing Subsidiary hereby irrevocably appoints
the Company as its agent for service of process in respect of this Agreement and
any Borrowing Subsidiary Agreement; provided that such appointment will not
affect the right of any party to this Agreement to serve process on any
Borrowing Subsidiary in any other manner permitted by law.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
ACNIELSEN CORPORATION,
by
/s/ John A. Forster
Name: John A. Forster
Title: Vice President &
Treasurer
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
/s/ Tracey A. Navin
Name: Tracey A. Navin
Title: Vice President
ABN AMRO BANK N.V., NEW YORK
BRANCH,
by
/s/ James Dunleavey
Name: James Dunleavey
Title: Senior Vice President
by
/s/ Ravneet Mumich
Name: Ravneet Mumich
Title: Vice President
THE BANK OF NEW YORK,
by
/s/ Kenneth P. Sneider
Name: Kenneth P. Sneider
Title: Vice President
CITIBANK, N.A.,
by
/s/ William G. Martens III
Name: William G. Martens III
Title: Attorney-in-fact
<PAGE>
CREDITO ITALIANO,
by
/s/ Harmon P. Butler
Name: Harmon P. Butler
Title: First Vice President &
Deputy Manager
by /s/ Gianfranco Bisagni
Name: Gianfrano Bisagni
Title: First Vice President
BANKBOSTON, N.A.,
by
/s/ Lisa Gelfand Abrams
Name: Lisa Gelfand Abrams
Title: Vice President
MARINE MIDLAND BANK,
by
/s/ William M. Holland
Name: William M. Holland
Title: Vice President
THE NORTHERN TRUST COMPANY,
by
/s/ Deborah D. Thomas
Name: Deborah D. Thomas
Title: Vice President &
Division Head
THE SANWA BANK LIMITED,
by
/s/ Dominic J. Sorresso
Name: Dominic J. Sorresso
Title: Vice President
TORONTO DOMINION (TEXAS), INC.,
by
/s/ Jimmy Simien
Name: Jimmy Simien
Title: Vice President
<PAGE>
SOCIETE GENERALE, NEW YORK BRANCH,
by
/s/ James H. Nangle
Name: James H. Nangle
Title: First Vice President
WACHOVIA BANK, N.A.,
by
/s/ James McCreary
Name: James McCreary
Title: Senior Vice President
Exhibit 99 (a)
The New Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, New Jersey 07974
June 29, 1998
Kenneth Siegel, Esq.
Cognizant Corporation
200 Nyala Farms
Westport, CT 06880
Earl Doppelt, Esq.
ACNielsen Corporation
177 Broad Street
Stamford, CT 06901
Dear Sirs:
Reference is made to the Distribution Agreement (the "1996 Distribution
Agreement"), dated as of October 28, 1996, among The Dun & Bradstreet
Corporation ("D&B"), Cognizant Corporation ("Cognizant") and ACNielsen
Corporation ("ACNielsen"). D&B has announced its intention to separate into two
separate companies through a distribution (the "New D&B Distribution") to its
stockholders of all of the shares of common stock of its subsidiary The New Dun
& Bradstreet Corporation ("New D&B"). In Section 8.9(b) of the 1996 Distribution
Agreement, D&B agreed not to make a distribution such as the New D&B
Distribution unless it caused the distributed entity to undertake to both
Cognizant and ACNielsen to be jointly and severally liable for all D&B
Liabilities (as defined in the 1996 Distribution Agreement). Therefore, in
accordance with Section 8.9(b) of the 1996 Distribution Agreement and intending
to be legally bound hereby, from and after the effective time of the New D&B
Distribution, New D&B undertakes to each of Cognizant and ACNielsen to be
jointly and severally liable with D&B for all D&B Liabilities under the 1996
Distribution Agreement.
Very truly yours,
THE NEW DUN & BRADSTREET
CORPORATION
By: /S/Nancy L. Henry
Name: Nancy L. Henry
Title: Senior Vice President and
Chief Legal Counsel
Exhibit 99 (b)
IMS Health Incorporated
200 Nyala Farms
Westport, CT 06880
June 29, 1998
Nancy Henry, Esq.
The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, NJ 07974
Earl Doppelt, Esq.
ACNielsen Corporation
177 Broad Street
Stamford, CT 06901
Dear Ms. Henry and Mr. Doppelt:
Reference is made to the Distribution Agreement (the "1996 Distribution
Agreement"), dated as of October 28, 1996, among Cognizant Corporation
("Cognizant"), The Dun & Bradstreet Corporation ("D&B") and ACNielsen
Corporation ("ACNielsen"). Cognizant has announced its intention to separate
into two separate companies through a distribution (the "IMS HEALTH
Distribution") to its stockholders of all of the shares of common stock of its
subsidiary IMS Health Incorporated ("IMS HEALTH"). In Section 8.9(c) of the 1996
Distribution Agreement, Cognizant agreed not to make a distribution such as the
IMS HEALTH Distribution unless it caused the distributed entity to undertake to
both D&B and ACNielsen to be jointly and severally liable for all Cognizant
Liabilities (as defined in the 1996 Distribution Agreement). Therefore, in
accordance with Section 8.9(c) of the 1996 Distribution Agreement and intending
to be legally bound hereby, from and after the effective time of the IMS HEALTH
Distribution, IMS HEALTH undertakes to each of D&B and ACNielsen to be jointly
and severally liable with Cognizant for all Cognizant Liabilities under the 1996
Distribution Agreement.
Very truly yours,
IMS HEALTH INCORPORATED
By: /S/Kenneth S. Siegel
Name: Kenneth S. Siegel
Title: Senior Vice President,
General Counsel and Secretary
