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Exhibit 4
364-DAY CREDIT AGREEMENT
Dated as of October 12, 2000
Among
R.R. DONNELLEY & SONS COMPANY
as Borrower,
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THE BANKS NAMED HEREIN
as Banks,
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BANK ONE, NA
as Administrative Agent,
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FIRST UNION NATIONAL BANK
as Syndication Agent,
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THE NORTHERN TRUST COMPANY
as Documentation Agent
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and
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
WACHOVIA BANK, N.A.
and
BANK OF AMERICA, N.A.
as Co-Agents
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BANC ONE CAPITAL MARKETS, INC.
as Lead Arranger and Sole Book Runner
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................. 1
SECTION 1.01 Certain Defined Terms....................................... 1
SECTION 1.02 Computation of Time Periods................................. 12
SECTION 1.03 Accounting Terms; Modifications due to Implementation of
Euro....................................................... 12
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES............................... 13
SECTION 2.01 The Committed Advances...................................... 13
SECTION 2.02 Making the Committed Advances............................... 13
SECTION 2.03 The Uncommitted Advances.................................... 18
SECTION 2.04 Facility Fee and Utilization Fee............................ 21
SECTION 2.05 Reduction and Termination of the Commitments................ 22
SECTION 2.06 Payment; Conversion and Continuation........................ 22
SECTION 2.07 Interest on Committed Advances.............................. 23
SECTION 2.08 Additional Interest on Eurocurrency Rate Advances........... 24
SECTION 2.09 Interest Rate Determination................................. 24
SECTION 2.10 Prepayments................................................. 25
SECTION 2.11 Funding Indemnification..................................... 25
SECTION 2.12 Increased Costs and Reduced Return.......................... 26
SECTION 2.13 Illegality.................................................. 27
SECTION 2.14 Payments and Computations................................... 27
SECTION 2.15 Sharing of Payments, Etc.................................... 28
SECTION 2.16 Currency Equivalents........................................ 29
SECTION 2.17 Borrowing Subsidiaries...................................... 29
SECTION 2.18 Taxes....................................................... 30
SECTION 2.19 Defaulting Banks............................................ 32
SECTION 2.20 Mitigation.................................................. 34
SECTION 2.21 European Economic and Monetary Union........................ 34
SECTION 2.22 Extension of Termination Date............................... 34
SECTION 2.23 Increase of Aggregate Commitments........................... 35
ARTICLE III CONDITIONS PRECEDENT........................................... 37
SECTION 3.01 Conditions Precedent to Effectiveness of Sections 2.01
and 2.03................................................... 37
SECTION 3.02 Conditions Precedent to Initial Advance to Each Borrowing
Subsidiary................................................. 38
SECTION 3.03 Conditions Precedent to Each Committed Borrowing............ 39
SECTION 3.04 Conditions Precedent to Each Uncommitted Borrowing.......... 39
ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................. 40
SECTION 4.01 Representations and Warranties of the Company.............. 40
ARTICLE V COVENANTS OF THE COMPANY......................................... 42
SECTION 5.01 Compliance with Laws, Etc................................... 42
SECTION 5.02 Interest Coverage Ratio..................................... 42
SECTION 5.03 Reporting Requirements...................................... 42
SECTION 5.04 Use of Proceeds............................................. 43
SECTION 5.05 Limitation on Liens, Etc.................................... 43
SECTION 5.06 Merger; Sale of Assets...................................... 44
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(Continued)
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SECTION 5.07 Books and Records; Inspection............................... 45
SECTION 5.08 Corporate Existence......................................... 45
SECTION 5.09 Conduct of Business......................................... 45
SECTION 5.10 Payment of Taxes............................................ 45
ARTICLE VI EVENTS OF DEFAULT............................................... 46
SECTION 6.01 Events of Default........................................... 46
ARTICLE VII GUARANTEE...................................................... 48
SECTION 7.01 Unconditional Guarantee..................................... 48
SECTION 7.02 Validity.................................................... 48
SECTION 7.03 Waivers..................................................... 48
SECTION 7.04 Subrogation................................................. 48
SECTION 7.05 Acceleration................................................ 49
SECTION 7.06 Reinstatement............................................... 49
SECTION 7.07 Continuing Guaranty; Assignments............................ 49
ARTICLE VIII ADMINISTRATIVE AGENT; SYNDICATION AGENT; DOCUMENTATION AGENT;
CO-AGENTS.................................................................. 49
SECTION 8.01 Authorization and Action.................................... 49
SECTION 8.02 Administrative Agent's Reliance, Etc........................ 50
SECTION 8.03 The Administrative Agent and Affiliates..................... 51
SECTION 8.04 Bank Credit Decision; Notice of Default..................... 51
SECTION 8.05 Indemnification............................................. 51
SECTION 8.06 Successor Administrative Agent.............................. 52
SECTION 8.07 Syndication Agent; Documentation Agent; Co-Agents........... 52
ARTICLE IX MISCELLANEOUS................................................... 52
SECTION 9.01 Amendments, Etc............................................. 52
SECTION 9.02 Notices, Etc................................................ 53
SECTION 9.03 No Waiver; Remedies......................................... 54
SECTION 9.04 Costs and Expenses.......................................... 54
SECTION 9.05 Right of Set-off............................................ 54
SECTION 9.06 Binding Effect.............................................. 55
SECTION 9.07 Assignments, Designations and Participations................ 55
SECTION 9.08 Governing Law............................................... 59
SECTION 9.09 Execution in Counterparts................................... 59
SECTION 9.10 Confidentiality............................................. 59
SECTION 9.11 Non-Reliance by the Banks................................... 59
SECTION 9.12 No Indirect Security........................................ 60
SECTION 9.13 Indemnification............................................. 60
SECTION 9.14 Partial Invalidity.......................................... 60
SECTION 9.16 Jurisdiction, Etc........................................... 61
SECTION 9.17 Nonliability of Banks....................................... 61
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EXHIBITS
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EXHIBIT A -- Form of Assignment and Acceptance
EXHIBIT B -- Form of Assumption Letter
EXHIBIT C -- Form of Designation Agreement
EXHIBIT D-1 -- Form of Committed Note
EXHIBIT D-2 -- Form of Uncommitted Note
EXHIBIT E-1 -- Form of Notice of Committed Borrowing
EXHIBIT E-2 -- Form of Notice of Uncommitted Borrowing
EXHIBIT F -- Form of Notice of Continuation/Conversion
EXHIBIT G -- Form of Commitment Increase Consent
EXHIBIT H -- Form of Opinion of Counsel to the Company
EXHIBIT I -- Form of Opinion of Counsel to Borrowing Subsidiary
SCHEDULE
SCHEDULE I -- Banks
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364-DAY CREDIT AGREEMENT
Dated as of October 12, 2000
R.R. DONNELLEY & SONS COMPANY, a Delaware corporation (the "Company"), the
banks listed on the signature pages hereof, and BANK ONE, NA, as Administrative
Agent (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
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SECTION 1.01 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Acceptance Deadline" has the meaning specified in Section 2.03(a)(iii).
"Administrative Agent" means Bank One, in its capacity as the contractual
representative for all of the Banks for purposes of this Agreement, as
designated and appointed in accordance with Article VIII, and any successor
thereto as provided herein.
"Advance" means a Committed Advance or an Uncommitted Advance.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person.
"Affordable Housing Debt" means Debt of the Company or of any of its
Subsidiaries which is associated with the direct or indirect investment by the
Company or such Subsidiary in affordable housing where the expected tax benefits
of such investment exceed the total amount of the future annual payments
required as part of such investment.
"Agreement" shall mean this 364-Day Credit Agreement, as the same may be
amended, modified, supplemented or restated from time to time.
"Alternative Currency" means Sterling, German Marks, Swiss Francs, Yen and
any other currency (other than Dollars) (i) which is readily available, freely
transferable and convertible into Dollars in the international currency and
exchange markets, (ii) in which deposits are customarily offered to banks in the
London interbank market and (iii) as to which an equivalent amount in Dollars
may be readily calculated, including the Euro.
"Applicable Lending Office" means, with respect to each Bank, such Bank's
Domestic Lending Office in the case of a Base Rate Advance, and such Bank's
Eurocurrency Lending Office in the case of a Eurocurrency Rate Advance and, in
the case of an Uncommitted Advance, the office of such Bank notified by such
Bank to the Administrative Agent as its Applicable Lending Office with respect
to such Uncommitted Advance.
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"Applicable Margin" means on any day 0.19%.
"Arranger" means Banc One Capital Markets, Inc.
"Assignment and Acceptance" means an Assignment and Acceptance executed by
a Bank (other than a Designated Bidder) and an Eligible Assignee and accepted by
the Administrative Agent and the Company, substantially in the form of Exhibit A
hereto.
"Assumption Letter" means a letter of a Subsidiary of the Company addressed
to the Banks in substantially the form of Exhibit B hereto pursuant to which
such Subsidiary agrees to become a "Borrowing Subsidiary" and agrees to be bound
by the terms and conditions hereof.
"Available Commitment" has the meaning specified in Section 2.01.
"Bank One" means Bank One, NA, a national banking association having its
headquarters in Chicago, Illinois, in its individual capacity, and its
successors.
"Banks" means the banks listed on Schedule I hereto and each Person that
becomes a party hereto pursuant to Section 9.07(a), (b) and (c), and, except
when used in reference to a Committed Advance, a Committed Borrowing, a
Committed Note, a Commitment or a related term, each Designated Bidder.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the higher of:
(a) the corporate base rate of interest announced by Bank One from time to
time, changing when and as said corporate base rate changes; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means a Committed Advance which bears interest at a
rate based upon the Base Rate, as provided in Section 2.07(a).
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means a Committed Borrowing or an Uncommitted Borrowing.
"Borrowing Subsidiary" means any Subsidiary of the Company duly designated
by the Company pursuant to Section 2.17 hereof to make Borrowings hereunder,
which Subsidiary shall have delivered an Assumption Letter to the Administrative
Agent in accordance with Section 2.17.
"Business Day" means a day of the year (other than a Saturday or Sunday) on
which banks are not required or authorized by law to close in New York City and
Chicago and, if the applicable Business Day relates to any Eurocurrency Rate
Advances, on which dealings are carried on in the London interbank market (and,
if such Eurocurrency Rate Advances are denominated in the Euro, a day upon which
such clearing system as is determined by the Administrative Agent to be suitable
for clearing or settlement of the Euro is open for business).
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"Category Status" means Category 1 Status, Category 2 Status, Category 3
Status, Category 4 Status or Category 5 Status, as appropriate.
"Category 1 Status" exists at any date if at such date the Public Debt
Rating announced by S&P is AA- (or the equivalent) or better or the Public Debt
Rating announced by Moody's is Aa3 (or the equivalent) or better.
"Category 2 Status" exists at any date if at such date (i) the Public Debt
Rating announced by S&P is A (or the equivalent) or better or the Public Debt
Rating announced by Moody's is A2 (or the equivalent) or better, and (ii)
Category 1 Status does not exist.
"Category 3 Status" exists at any date if at such date (i) the Public Debt
Rating announced by S&P is A- (or the equivalent) or better or the Public Debt
Rating announced by Moody's is A3 (or the equivalent) or better, and (ii)
neither Category 1 Status nor Category 2 Status exists.
"Category 4 Status" exists at any date if at such date (i) the Public Debt
Rating announced by S&P is BBB (or the equivalent) or better or the Public Debt
Rating announced by Moody's is Baa2 (or the equivalent) or better, and (ii) none
of Category 1 Status, Category 2 Status or Category 3 Status exists.
"Category 5 Status" exists at any date if at such date (i) the Public Debt
Rating announced by S&P is lower than BBB (or the equivalent) and the Public
Debt Rating announced by Moody's is lower than Baa2 (or the equivalent), or (ii)
neither S&P nor Moody's shall have a Public Debt Rating in effect at such date.
"Commission" means the Securities and Exchange Commission or any federal
body succeeding to its functions.
"Commitment" has the meaning specified in Section 2.01.
"Committed Advance" means an advance by a Bank to a Borrower as part of a
Committed Borrowing and refers to a Base Rate Advance or a Eurocurrency Rate
Advance, each of which shall be a "Type" of Committed Advance.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Advances of the same Type made by each of the Banks to a Borrower
pursuant to Section 2.01.
"Committed Note" means a promissory note, in substantially the form of
Exhibit D-1 hereto, duly executed by the Company or a Borrowing Subsidiary and
payable to the order of a Bank in the amount of its Commitment, including any
amendment, modification, renewal or replacement of such promissory note.
"Consolidated EBIT" means, for any period, on a consolidated basis for the
Company and its Consolidated Subsidiaries, the sum of the amounts for such
period of (a) Consolidated Net Income (excluding non-recurring or extraordinary
gains, losses, expenses and charges but including cash charges and payments
during such period related to extraordinary or non-recurring gains, losses,
charges and expenses), plus (b) charges against income for foreign,
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federal, state and local taxes, plus (c) Consolidated Interest Expense plus (or
minus) (d) pre-tax income (or loss) from discontinued operations.
"Consolidated Interest Expense" means, for any period, the sum of total
interest expense of the Company and its Consolidated Subsidiaries, whether paid
or accrued, as determined in accordance with GAAP.
"Consolidated Net Income" means, for any period, the consolidated net
earnings (or loss) after taxes of the Company and its Consolidated Subsidiaries
for such period, determined in accordance with GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary the accounts of
which would be consolidated with those of the Company in its consolidated
financial statements at such date in accordance with GAAP; provided, that for
purposes of Sections 5.02 and 5.03, "Consolidated Subsidiary" shall mean any
subsidiary the accounts of which would be consolidated with those of the Company
in its consolidated financial statements at such date in accordance with GAAP.
"Consolidated Tangible Net Worth" means, as of any date, an amount equal to
the sum of (i) the par or stated value of the outstanding shares of all classes
of capital stock of the Company, (ii) paid-in capital and capital surplus of the
Company and (iii) retained earnings of the Company, as each of which would
appear on a consolidated balance sheet of the Company and its Consolidated
Subsidiaries prepared as of the last day of the most recently completed fiscal
quarter in accordance with GAAP, less the aggregate net amount of (i) all assets
so appearing which in accordance with GAAP are deemed intangible, such
intangible assets to specifically include, but not be limited to, licenses,
copyrights, trademarks, tradenames, patents and goodwill, and (ii) any write-up
in the book value of assets made after December 31, 1997, other than any such
write-up to an appraised fair market value in accordance with the purchase
accounting requirements of GAAP.
"Continuation Notice" has the meaning specified in Section 2.22.
"Continuing Bank" has the meaning specified in Section 2.22.
"Debt" means (but without duplication of any item) (i) indebtedness for
borrowed money, (ii) obligations evidenced by bonds, debentures, notes or other
similar instruments, (iii) obligations as lessee under leases which shall have
been or should be, in accordance with generally accepted accounting principles,
recorded as capital leases, and (iv) obligations under direct or indirect
guaranties in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise assure a creditor against loss in respect of,
indebtedness or obligations of others of the kinds referred to in clause (i),
(ii) or (iii) above.
"Defaulted Advance" means, with respect to any Bank at any time, the amount
of any Advance required to be made by such Bank to the Borrower pursuant to
Section 2.01 or Section 2.03(a) at or prior to such time that has not been so
made as of such time; provided, however, that any Advance made by the
Administrative Agent for the account of such Bank pursuant to Section 2.02(e)
shall not be considered a Defaulted Advance even if, at such time, such Bank
shall not have reimbursed the Administrative Agent therefor as provided in
Section 2.02(e). If part of a Defaulted Advance shall be deemed made pursuant to
Section 2.19(a), the remaining
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part of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 or Section 2.03(a) on
the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Bank at any time, any amount
required to be paid by such Bank to the Administrative Agent or any other Bank
hereunder at or prior to such time that has not been so paid as of such time,
including, without limitation, any amount required to be paid by such Bank to
(a) the Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the Administrative
Agent for the account of such Bank, (b) any other Bank pursuant to Section 2.15
to purchase any participation in Advances owing to such other Bank and (c) the
Administrative Agent pursuant to Section 8.05 to reimburse the Administrative
Agent for such Bank's ratable share of any amount required to be paid by the
Banks to the Administrative Agent as provided therein. If part of a Defaulted
Amount shall be deemed paid pursuant to Section 2.19(b), the remaining part of
such Defaulted Amount shall be considered a Defaulted Amount originally required
to be made hereunder on the same date as the Defaulted Amount so deemed paid in
part.
"Defaulting Bank" means, at any time, any Bank that, at such time, (a) owes
a Defaulted Advance or a Defaulted Amount or (b) shall take or be the subject of
any action or proceeding of a type described in Section 6.01(f).
"Designated Bidder" means (a) an Eligible Assignee or (b) a special purpose
corporation that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and that issues (or the
parent of which issues) commercial paper rated at least "Prime-1" (or the then
equivalent grade) by Moody's or "A-1" (or the then equivalent grade) by S&P
that, in the case of either clause (a) or clause (b), (i) is organized under the
laws of the United States or any State thereof, (ii) shall have become a party
hereto pursuant to Section 9.07(d), (e) and (f), and (iii) is not otherwise a
Bank.
"Designation Agreement" means a designation agreement entered into by a
Bank (other than a Designated Bidder) and a Designated Bidder, and accepted by
the Administrative Agent and the Company, in substantially the form of Exhibit C
hereto.
"Dollar Amount" means, for any date of determination:
(a) with respect to any amount denominated in Dollars, such amount; and
(b) with respect to an amount denominated in any Alternative Currency, the
amount of Dollars into which the Administrative Agent could, in accordance with
its practice from time to time in the London interbank foreign exchange market,
convert such amount of Alternative Currency at its spot rate of exchange
applicable to the relevant transaction at or about 11:00 a.m., London time, on
the date of such determination, for the delivery of Dollars two Business Days
thereafter. For purposes of this Agreement, the Dollar Amount of any amount
received by a Bank hereunder shall be determined as of the date of such receipt.
"Dollars" and the sign "$" each means the lawful currency of the United
States.
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"Domestic Lending Office" means, with respect to any Bank, the office of
such Bank specified as its "Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Bank, as the case may be, or such other office of such Bank as such
Bank may from time to time specify to the Company and the Administrative Agent.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Bank (other than a Designated Bidder); (ii)
an Affiliate of a Bank (other than a Designated Bidder); (iii) a commercial bank
organized under the laws of the United States or any State thereof, and having a
combined capital and surplus of at least $500,000,000; (iv) a commercial bank
organized under the laws of any other country that is a member of the
Organization for Economic Cooperation and Development, has a combined capital
and surplus of at least $500,000,000 and is acting through a branch or agency
located in the United States, and (v) any other Person approved by the Company
and the Administrative Agent, such approvals not to be unreasonably withheld or
delayed (it being understood that the Company may reasonably withhold its
approval of any such other Person if at the time it would become a Bank
hereunder payments to it would not be exempt from United States withholding
tax).
"Environmental Action" means any administrative, regulatory or judicial
action, suit, demand, demand letter, claim, notice of noncompliance or
violation, notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory authority
for enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third party
for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment, decree or judicial
interpretation relating to the environment, health, safety or Hazardous
Materials.
"Environmental Permit" means any permit, approval, indemnification number,
license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974 as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the Company's controlled group, or under common control with the
Company, as determined under Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC; (b)
the application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of
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intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of the Company or any
of its ERISA Affiliates in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by the Company or any of its ERISA Affiliates from a
Multiple Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the failure by the
Company or any of its ERISA Affiliates to make a payment to a Plan if the
conditions for the imposition of a lien under Section 302(f)(1) of ERISA are
satisfied; (g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan, pursuant to Section 307 of ERISA; or (h) the institution
by the PBGC of proceedings to terminate a Plan, pursuant to Section 4042 of
ERISA, or the occurrence of any event or condition described in Section 4042 of
ERISA that could constitute grounds for the termination of, or the appointment
of trustee to administer, a Plan.
"Euro" and/or "EUR" means the euro referred to in Council Regulation (EC)
No. 1103/97 dated June 17, 1997 passed by the Council of the European Union, or,
if different, the then lawful currency of the member states of the European
Union that participate in the third stage of Economic and Monetary Union.
"Eurocurrency Lending Office" means, with respect to any Bank, the office
of such Bank specified as its "Eurocurrency Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance pursuant to which it
became a Bank (or, if no such office is specified, its Domestic Lending Office),
or such other office of such Bank as such Bank may from time to time specify to
the Company and the Administrative Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, with respect to any Eurocurrency Rate Advance
for any specified Interest Period or for the term of any Uncommitted Advance
with respect to which interest is calculated by reference to the Eurocurrency
Rate, either:
(i) the rate of interest per annum equal to the rate for deposits in
Dollars or the applicable Alternative Currency of such Eurocurrency Rate
Advance with a maturity approximately equal to such Interest Period which
appears on Dow Jones Markets (Telerate) Page 3740 or 3750, as applicable,
or, if there is more than one such rate, the average of such rates rounded
to the nearest 1/100 of 1% (if such average is not a multiple of 1/16 of
1%), as of 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or
(ii) if no such rate of interest appears on Dow Jones Markets
(Telerate) Page 3740 or 3750, as applicable, for any specified Interest
Period, or if Dow Jones Markets (Telerate) Page 3740 or 3750 is unavailable
for any reason, the applicable per annum London interbank offered rate for
deposits in Dollars or the applicable Alternative Currency appearing on
Reuters Screen FRBD as of 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, and having a maturity equal to
such Interest Period.
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"Eurocurrency Rate Advance" means a Committed Advance which bears interest
at a rate based upon the Eurocurrency Rate, as provided in Section 2.07(c).
"Eurocurrency Rate Reserve Percentage" of any Bank (other than a Designated
Bidder) for any Interest Period for a Eurocurrency Rate Advance means the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for such Bank with respect
to liabilities or assets consisting of or including Eurocurrency Liabilities (or
with respect to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurocurrency Rate Advances of such
currency is determined) having a term equal to such Interest Period.
"Eurocurrency Rate Uncommitted Borrowing" means an Uncommitted Borrowing
comprised of Uncommitted Advances denominated in Dollars, bearing interest based
upon the Eurocurrency Rate.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Request" has the meaning specified in Section 2.22.
"Facility Fee" has the meaning specified in Section 2.04.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the immediately preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day that is a Business Day, the average 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.
"Fixed Rate Uncommitted Borrowing" means an Uncommitted Borrowing
consisting of Uncommitted Advances bearing interest at a fixed percentage rate
per annum (expressed in the form of a decimal to no more than four decimal
places) specified by the respective Banks making such Uncommitted Advances
pursuant to the procedure described in Section 2.03.
"GAAP" has the meaning specified in Section 1.03.
"German Marks" means the lawful currency of the Federal Republic of
Germany.
"Hazardous Materials" means petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, radon
gas and any other chemicals, materials or substances designated, classified or
regulated as being "hazardous" or "toxic", or words of similar import, under any
federal, state, local or foreign statute, law, ordinance, rule, regulation,
code, order, judgment, decree or judicial interpretation.
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"Insurance Policy Debt" means Debt of the Company or any of its
Subsidiaries under policies of life insurance now or hereafter owned by the
Company or any of its Subsidiaries under which policies the sole recourse for
such borrowing is against such policies.
"Interest Coverage Ratio" means the ratio, determined on a consolidated
basis for the Company and its Consolidated Subsidiaries in accordance with GAAP
as of the end of any fiscal quarter, of Consolidated EBIT to Consolidated
Interest Expense, in each case determined as of the last day of such fiscal
quarter for the four-quarter period then ended.
"Interest Period" means, for each Eurocurrency Rate Advance comprising part
of the same Committed Borrowing, the period commencing on the date of such
Eurocurrency Rate Advance or the date of any conversion or continuation thereof,
and ending on the last day of the period selected by a Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be one, two,
three or six months, in each case as a Borrower may select, upon notice received
by the Administrative Agent pursuant to Section 2.02 or 2.06; provided, however,
that
(i) Interest Periods commencing on the same date for Eurocurrency Rate
Advances comprising part of the same Committed Borrowing shall be of the
same duration;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided that if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
(iii) whenever the first day of any Interest Period occurs on a day
in an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial calendar
month by the number of months equal to the number of months in such
Interest Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month; and
(iv) no Interest Period may terminate later than the Termination Date
(or, if the Company has made the Term Loan Election, the Maturity Date).
"Lien" means, with respect to any asset, any security interest, mortgage,
pledge, lien, claim, charge or encumbrance of any kind in respect of such asset.
"Majority Banks" means at any time Banks holding more than 50% of the then
aggregate unpaid principal amount of the Committed Advances held by the Banks,
or, if no such principal amount is then outstanding, Banks having more than 50%
of the Commitments.
"Margin Stock" has the meaning specified in Regulation U issued by the
Board of Governors of the Federal Reserve System.
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"Material Adverse Effect" means a material adverse effect on (i) the
business, financial condition, operations, properties or performance of the
Company and its Subsidiaries, taken as a whole, (ii) the legality, validity or
enforceability of this Agreement or the Notes or (iii) the ability of the
Company to perform its obligations under this Agreement and the Notes.
"Material Subsidiary" means a Subsidiary of the Company which, at the time
of determination, (i) shall own assets comprising in excess of 10% of all of the
assets of the Company and its consolidated Subsidiaries on a consolidated basis,
or (ii) has operating income for the four fiscal quarters most recently ended in
excess of 10% of the operating income of the Company and its consolidated
Subsidiaries on a consolidated basis.
"Maturity Date" means the earlier of (a) the first anniversary of the
Termination Date and (b) the date on which all amounts payable hereunder have
become due and payable pursuant to Section 6.01.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Company or any of its ERISA Affiliates is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Company or any of its ERISA Affiliates and at least one Person other than the
Company and its ERISA Affiliates or (b) was so maintained and in respect of
which the Company or any of its ERISA Affiliates could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"National Currency Unit" means the unit of currency (other than a Euro
unit) of each member state of the European Union that participates in the third
stage of Economic and Monetary Union.
"Non-Extending Bank" has the meaning specified in Section 2.22.
"Note" means a Committed Note or an Uncommitted Note.
"Notice of Committed Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Conversion or Continuation" has the meaning specified in Section
2.06(b).
"Notice of Uncommitted Borrowing" has the meaning specified in Section
2.03(a).
"PBGC" means the Pension Benefit Guaranty Corporation and its successors
and assigns.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
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"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pro Rata Share" means, at any time with respect to any Bank, the ratio
(expressed as a percentage) that such Bank's Commitment bears to the aggregate
Commitments of all Banks at such time or, at any time after the Commitments have
been terminated, the ratio (expressed as a percentage) that such Bank's
outstanding Committed Advances bears to the aggregate outstanding Committed
Advances of all Banks at such time.
"Public Debt Rating" means, on any date, the rating that has been most
recently announced by S&P or Moody's, as the case may be, for any class of long-
term senior non-credit-enhanced unsecured debt issued by the Company, changing
when and as the applicable rating agency publicly announces a change in its
Public Debt Rating.
"Quote Deadline" has the meaning specified in Section 2.03(a)(ii).
"Register" has the meaning specified in Section 9.07(g).
"Replacement Bank" has the meaning specified in Section 2.22(b).
"Request Deadline" has the meaning specified in Section 2.03(a)(i).
"Responsible Officer" means the Executive Vice President and Chief
Financial Officer of the Company, the Vice President and Treasurer of the
Company, or any other officer of the Company or any other Borrower responsible
for overseeing or reviewing compliance with this Agreement or any Note.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of the Company or any
of its ERISA Affiliates and no Person other than the Company and its ERISA
Affiliates or (b) was so maintained and in respect of which the Company or any
of its ERISA Affiliates could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Sterling" means the lawful currency of the United Kingdom.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association or other business entity of
which securities or other ownership interests having (a) ordinary voting power
to elect a majority of the board of directors or other persons performing
similar functions or (b) having the ability to direct the management of such
corporation, partnership, limited liability company, association or other
business entity, are at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries or by one
or more of such Person's other Subsidiaries.
"Swiss Francs" means the lawful currency of Switzerland.
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"Termination Date" means the earlier of (i) October 11, 2001 (or such later
date as is established pursuant to Section 2.22(d)) or (ii) the date the
Commitments are terminated in whole pursuant to Section 2.05 or 6.01.
"Term Loan Election" has the meaning specified in Section 2.06.
"Uncommitted Advance" means an advance by a Bank to a Borrower as part of
an Uncommitted Borrowing resulting from the auction bidding procedure described
in Section 2.03.
"Uncommitted Borrowing" means a borrowing consisting of simultaneous
Uncommitted Advances from each of the Banks whose offer to make one or more
Uncommitted Advances as part of such borrowing has been accepted by a Borrower
under the auction bidding procedure described in Section 2.03.
"Uncommitted Borrowing Margin" means, with respect to any Eurocurrency Rate
specified by a Borrower in a Notice of Uncommitted Borrowing and any offer made
by a Bank in response to such Notice of Uncommitted Borrowing, the margin
(expressed as a percentage rate per annum) to be added to or subtracted from
such Eurocurrency Rate in order to determine the interest rate per annum at
which such Bank is willing to, and offers to, make an Uncommitted Advance to
such Borrower as part of a Eurocurrency Rate Uncommitted Borrowing.
"Uncommitted Note" means a promissory note, in substantially the form of
Exhibit D-2 hereto, duly executed by the Company or a Borrowing Subsidiary and
evidencing an Uncommitted Advance made by such Bank, including any amendment,
modification, renewal or replacement of such promissory note.
"Utilization Fee" has the meaning specified in Section 2.04.
"Withdrawal Liability" has the meaning specified in Part 1 of Subtitle E of
Title IV of ERISA.
"Yen" means the lawful currency of Japan.
SECTION 1.02 Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding."
SECTION 1.03 Accounting Terms; Modifications due to Implementation of
Euro. (a) All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles consistent
with those applied in the preparation of the financial statements then most
recently delivered by the Company to the Banks in accordance with Section 5.03
("GAAP"); provided, however, that, if any changes in accounting principles from
those used in the preparation of the consolidated financial statements of the
Company and its Subsidiaries for the fiscal year of the Company ended December
31, 1999 (as delivered to the Lenders pursuant to Section 4.01(e)) occur by
reason of the promulgation of rules, regulations, pronouncements, opinions or
other requirements of the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or agencies
with similar functions) and such changes would affect (or would result in a
change in the method of
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calculation of) the covenant set forth in Section 5.02, or any of the defined
terms related thereto contained in Section 1.01, then upon the request of any
party hereto, the Company, the Administrative Agent and the Banks shall enter
into negotiations in good faith, if and to the extent necessary, to amend such
covenant or such terms as would be affected by such changes in GAAP, in
accordance with Section 9.01, in such manner as would maintain the economic
terms of such covenant as in effect under this Agreement, prior to giving effect
to the occurrence of any such changes; and provided further, however, that until
the amendment of the covenant and the defined terms referred to in the
immediately preceding proviso becomes effective, such covenant and defined terms
shall be performed, observed and determined, and any determination of compliance
with such covenant shall be made, as though no such changes in accounting
principles had been made and the Company shall deliver to the Banks, in addition
to the consolidated financial statements otherwise required to be delivered to
the Banks under Sections 5.03(a) or 5.03(b) during such period, a statement of
reconciliation conforming such consolidated financial statements to GAAP prior
to such changes.
(b) If the Administrative Agent determines that modifications to this
Agreement are necessary as a result of the commencement of the third stage of
European Economic and Monetary Union, then the Company, the Administrative Agent
and the Banks shall enter into negotiations in good faith to amend this
Agreement in such manner as to put the parties in the same position as if the
Euro Implementation Date had not occurred. No such modifications shall become
effective until this Agreement has been amended in accordance with Section 9.01
to incorporate such modifications.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
---------------------------------
SECTION 2.01 The Committed Advances. Each Bank severally agrees, on the
terms and conditions hereinafter set forth, to make Committed Advances to the
Borrowers from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an aggregate amount with respect to
all Borrowers not to exceed at any time outstanding an amount (such Bank's
"Available Commitment") equal to (i) the amount set forth opposite such Bank's
name on Schedule I hereto or, if such Bank has entered into any Assignment and
Acceptance, set forth for such Bank in the Register, as such amount may be
reduced pursuant to Section 2.05 (such Bank's "Commitment") minus (ii) such
Bank's Pro Rata Share of the aggregate amount of the Uncommitted Advances then
outstanding. Each Committed Borrowing shall be in an aggregate amount of not
less than $20,000,000 or an integral multiple of $1,000,000 in excess thereof
or, if the requested currency for such Committed Advance is not Dollars, an
equivalent amount (determined in accordance with Section 2.16) and multiple in
the requested Alternative Currency, and, subject to Section 2.02, shall consist
of Committed Advances of the same Type made on the same day to the same Borrower
by the Banks ratably according to their respective Commitments in the currency
so requested. Within the limits of each Bank's Available Commitment, a Borrower
may borrow under this Section 2.01, prepay pursuant to Section 2.10, and
reborrow under this Section 2.01.
SECTION 2.02 Making the Committed Advances. (a) Each Committed Borrowing
shall be made on notice by the Company (or, if such Borrower is a Borrowing
Subsidiary, by the
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Company on behalf of such Borrowing Subsidiary) to the Administrative Agent
(which shall give each Bank prompt notice thereof by telecopy), given not later
than 10:00 A.M. (Chicago time) on (i) the date of a proposed Committed Borrowing
comprised of Base Rate Advances, (ii) the third Business Day prior to the date
of a proposed Committed Borrowing comprised of Eurocurrency Rate Advances to be
denominated in Dollars, and (iii) the fourth Business Day prior to the date of a
proposed Committed Borrowing comprised of Eurocurrency Rate Advances to be
denominated in an Alternative Currency. Each such notice of a Committed
Borrowing (a "Notice of Committed Borrowing") shall be by telecopy confirmed
immediately in writing, in substantially the form of Exhibit E-1 hereto,
specifying therein the requested (i) date of such Committed Borrowing, (ii) Type
of Committed Advances comprising such Committed Borrowing, which, in the case of
a Committed Borrowing denominated in an Alternative Currency, shall be
Eurocurrency Rate Advances, (iii) currency for such Committed Borrowing, which
shall be in Dollars or an Alternative Currency, (iv) aggregate amount of such
Committed Borrowing, (v) in the case of a Committed Borrowing consisting of
Eurocurrency Advances, the initial Interest Period for each Committed Advance
comprising such Committed Borrowing, and (vi) whether such Committed Borrowing
is to be made by the Company or by a specified Borrowing Subsidiary. The
Administrative Agent shall, promptly after such time as the Company or such
Borrower may no longer revoke the Notice of Committed Borrowing without any
liability to the Banks, notify each Bank and the Company or such Borrower of the
applicable interest rate under Section 2.07(a) or (b). Each Bank shall, before
12:00 P.M. (Chicago time) on the date of such Committed Borrowing, make
available for the account of its Applicable Lending Office to the Administrative
Agent at the Domestic Lending Office of the Bank then acting as Administrative
Agent, in federal or otherwise immediately available funds, such Bank's Pro Rata
Share of such Committed Borrowing. After the Administrative Agent receives such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the applicable
Borrower at the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding:
(i) If with respect to a request for a Committed Borrowing of an
Alternative Currency other than Sterling, German Marks, Swiss Francs
or Yen, any Bank shall, prior to 10:00 A.M. (Chicago time) on the
second Business Day before the requested date of such Committed
Borrowing, notify the Administrative Agent that the requested
Alternative Currency is not practically available to such Bank in the
amount required to make its Committed Advance in connection therewith;
or
(ii) If any Bank shall, prior to making any requested Committed
Borrowing consisting of Eurocurrency Rate Advances in an Alternative
Currency, notify the Administrative Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes
it unlawful, or that any central bank or other governmental authority
asserts that it is unlawful, for such Bank or its Eurocurrency Lending
Office or any other Applicable Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in such
currency or to fund or maintain Eurocurrency Rate Advances in such
currency hereunder; or
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(iii) If the Majority Banks shall, prior to making any requested
Committed Borrowing of an Alternative Currency other than Sterling,
German Marks, Swiss Francs, Yen or the Euro, notify the Administrative
Agent or the Administrative Agent shall reasonably determine that
currency control or other exchange regulations are imposed in the
country in which such currency is issued which result in the
introduction of different types of such currency or that there is a
change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which would
make it impracticable for such Advance to be denominated in the
Alternative Currency;
then, upon receipt of such notice, the Administrative Agent shall so notify the
Company and the applicable Borrower (if other than the Company) and the Company
or such Borrower may, without incurring an obligation to indemnify for losses,
costs or expenses under Section 2.02(d), by notice to the Administrative Agent
(which shall promptly notify each Bank), either
(x) withdraw the applicable Notice of Committed Borrowing, in
which case the Committed Borrowing shall not occur;
(y) request that such Committed Borrowing be made by the Banks in
Dollars as a Committed Borrowing comprised of either Eurocurrency Rate
Advances or Base Rate Advances, in which case the original Notice of
Committed Borrowing shall be deemed to be a Notice of Committed
Borrowing which requests a Committed Borrowing in an aggregate
principal amount in Dollars equivalent, on the date the Company or
such Borrower so notifies the Administrative Agent, to the amount of
the originally requested currency for such Type of Committed Advances
(determined in accordance with Section 2.16); provided that such
request may not be made by the Company or such Borrower if the
requested Type of Committed Advances is Eurocurrency Rate Advances and
the request by the Company or such Borrower is not given to the
Administrative Agent prior to 2:00 P.M. (London time) on the second
Business Day before the requested date of such Committed Borrowing; or
(z) only in the case of a Bank giving a notice described in
Section 2.02(b)(ii) above, request that such Committed Borrowing be
made by the Banks (other than the notifying Bank) and that no
Committed Advance be made by the notifying Bank in connection with
such Committed Borrowing.
In the case of any notice given under clause (y) above, the Company or such
Borrower shall specify in such notice the amount and type of Committed Advance
to be made by each Bank in connection therewith. Any notice under this
subsection (b) shall be given no later than 2:00 P.M. (London time) two Business
Days before the date of the requested Committed Borrowing, may be given by
telephone and, if by telephone, shall be confirmed promptly in writing. If
neither the Company nor the applicable Borrower shall provide a timely notice as
contemplated in clause (x), (y) or (z) above in response to a notice by any Bank
under clause (i) or (ii) above, the applicable Notice of Committed Borrowing
shall be deemed withdrawn.
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(c) Anything in subsection (a) above to the contrary notwithstanding,
if the Majority Banks shall, no later than 5:00 P.M. (Chicago time) three
Business Days before the date of any requested Committed Borrowing, continuation
or conversion consisting of Eurocurrency Rate Advances, or any continuation
thereof or conversion thereto, notify the Administrative Agent that the
Eurocurrency Rate for any Interest Period for such Eurocurrency Rate Advances,
plus additional interest, if any, payable under Section 2.08, will not
adequately reflect the cost to such Majority Banks of making, funding,
converting to or continuing their respective Eurocurrency Rate Advances for such
Committed Borrowing for such Interest Period, then the Administrative Agent
shall promptly notify the Company, the applicable Borrower (if other than the
Company) and the Banks of such circumstances and upon receipt of such notice,
the Company or such Borrower may, without incurring an obligation to indemnify
for losses, costs or expenses under Section 2.02(d), by notice to the
Administrative Agent (which shall promptly notify each Bank), either:
(i) withdraw the applicable Notice of Committed Borrowing, in
which case the Committed Borrowing shall not occur;
(ii) withdraw the applicable Notice of Conversion or
Continuation, in which case the conversion or continuation of such
Committed Borrowing shall not occur; or
(iii) request that such Committed Borrowing, continuation or
conversion be made by the Banks in Dollars as a Committed Borrowing,
continuation or conversion, in which case the original Notice of
Committed Borrowing, or Notice of Conversion or Continuation shall be
deemed to be a Notice of Committed Borrowing, or Notice of Conversion
or Continuation which requests a Committed Borrowing, continuation or
conversion in an aggregate principal amount in Dollars equivalent, on
the date the Company or such Borrower so notifies the Administrative
Agent, to the amount of the originally-requested currency for such
Committed Advances; provided that such request may not be made by the
Company or such Borrower if the request by the Company or such
Borrower is not given to the Administrative Agent prior to 2:00 P.M.
(London time) on the second Business Day before the requested date of
such Committed Borrowing, continuation or conversion.
In the case of any notice given under clause (iii) above, the Company or such
Borrower shall specify in such notice the amount and Type of Committed Advances
to be made, continued or converted by the Banks in connection therewith. Any
notice under this subsection (c) shall be given no later than 2:00 P.M. (London
time) two Business Days before the date of the requested Committed Borrowing,
may be given by telephone, and, if by telephone, shall be confirmed promptly in
writing. From and after the date the Administrative Agent receives the notice
described in Section 2.02(c), the Banks' obligation to make Eurocurrency
Advances for any affected Interest Period shall be suspended until the Majority
Banks notify the Administrative Agent that the circumstances giving rise to such
notice no longer exist. If neither the Company nor the applicable Borrower
shall provide a timely notice as contemplated in clauses (i), (ii) or (iii)
above with respect to a Notice of Committed Borrowing, the applicable Notice of
Committed Borrowing shall be deemed withdrawn. If neither the Company nor the
applicable Borrower shall provide timely a notice as contemplated in clauses
(i), (ii) or (iii) above with
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respect to a Notice of Continuation or Conversion, the Company or such
applicable Borrower shall be deemed to have made the request described in clause
(iii).
(d) Each Notice of Committed Borrowing and Notice of Conversion or
Continuation may be revoked by the Company or, if other than the Company, the
applicable Borrower, by notice to the Administrative Agent without any liability
on the part of the Company or such Borrower at any time prior to (i) 10:00 A.M.
(Chicago time) on the date of a proposed Committed Borrowing, continuation or
conversion comprised of Base Rate Advances, (ii) 11:00 A.M. (London time) on the
second Business Day prior to the date of a proposed Committed Borrowing,
continuation or conversion comprised of Eurocurrency Rate Advances to be
denominated in Dollars, and (iii) 11:00 A.M. (London time) on the third Business
Day prior to the date of a proposed Committed Borrowing, continuation or
conversion comprised of Eurocurrency Rate Advances to be denominated in an
Alternative Currency. In the case of any Committed Borrowing, continuation or
conversion which the related Notice of Committed Borrowing, or Notice of
Conversion or Continuation, specifies is to be comprised of Eurocurrency Rate
Advances, unless the Company or the applicable Borrower revokes such Notice of
Committed Borrowing or Notice of Conversion or Continuation in accordance with
the preceding sentence and except as otherwise provided in Sections 2.02(b) and
(c), the Company or such Borrower shall indemnify each Bank against any loss,
cost or expense reasonably incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing or Notice of
Conversion or Continuation for such Committed Borrowing, conversion or
continuation, the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense reasonably incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank to fund the Committed Advance to
be made by such Bank as part of such Committed Borrowing, conversion or
continuation, when such Committed Advance, as a result of such failure, is not
made, continued or converted on such date.
(e) Unless the Administrative Agent shall have received notice from a
Bank prior to the date of any Committed Borrowing that such Bank will not make
available to the Administrative Agent such Bank's Pro Rata Share of such
Committed Borrowing, the Administrative Agent may assume that such Bank has made
such Pro Rata Share available to the Administrative Agent on the date of such
Committed Borrowing in accordance with subsection (a) of this Section 2.02 and
the Administrative Agent may, in reliance upon such assumption, make a
corresponding amount available to the applicable Borrower on such date. If and
to the extent that such Bank shall not have so made such Pro Rata Share
available to the Administrative Agent, such Bank and such Borrower severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of such Borrower, the
interest rate applicable at the time to Committed Advances comprising such
Committed Borrowing and (ii) in the case of such Bank, the Federal Funds Rate.
If such Bank shall repay such corresponding amount to the Administrative Agent,
such amount so repaid shall constitute such Bank's Committed Advance as part of
such Committed Borrowing for purposes of this Agreement.
(f) A Bank's failure to make the Committed Advance to be made by it
as part of any Committed Borrowing shall not relieve any other Bank of its
obligation, if any, hereunder
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to make its Committed Advance on the date of such Committed Borrowing. No Bank
shall be responsible for the failure of any other Bank to make the Committed
Advance to be made by such other Bank on the date of any Committed Borrowing.
SECTION 2.03 The Uncommitted Advances. (a) Each Bank severally agrees
that any Borrower may make Uncommitted Borrowings in Dollars from time to time
on any Business Day during the period from the date hereof until 30 days before
the Termination Date in the manner set forth below; provided that, following the
making of each Uncommitted Borrowing, the aggregate amount with respect to all
Borrowers of the Advances then outstanding shall not exceed the aggregate amount
of the Commitments of the Banks.
(i) A Borrower may request, and the Company may request for the
benefit of any Borrowing Subsidiary, an Uncommitted Borrowing to be made by
such Borrower under this Section 2.03 by delivering to the Administrative
Agent, by telecopier not later than the applicable Request Deadline a
notice of an Uncommitted Borrowing (a "Notice of Uncommitted Borrowing"),
in substantially the form of Exhibit E-2 hereto, specifying therein (A) the
requested date of the proposed Uncommitted Borrowing, (B) the aggregate
amount of the proposed Uncommitted Borrowing, (C) that each Bank submitting
an offer shall quote an Uncommitted Borrowing Margin, or that each Bank
submitting an offer shall quote a fixed interest rate per annum without
reference to the Eurocurrency Rate, (D) maturity date for repayment of each
Uncommitted Advance to be made as part of such Uncommitted Borrowing (which
maturity date may not be earlier than seven (7) days, or later than 180
days after the date of the proposed Uncommitted Borrowing or later than the
Termination Date) and whether such Uncommitted Advance may be prepaid, and
if so, whether with or without penalty, (E) interest payment date or dates
relating thereto, (F) Borrower and (G) other material terms to be
applicable to such Uncommitted Borrowing. The Administrative Agent shall
promptly notify each Bank of its receipt of each such Notice of Uncommitted
Borrowing by sending each Bank a copy thereof. "Request Deadline" means (x)
in the case of a Fixed Rate Uncommitted Borrowing, 4:00 P.M. (Chicago time)
on the Business Day prior to the date of such proposed Uncommitted
Borrowing and (y) in the case of a Eurocurrency Rate Uncommitted Borrowing,
4:00 P.M. (Chicago time) four (4) Business Days prior to the date of such
proposed Uncommitted Borrowing.
(ii) Each Bank shall, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Uncommitted Advances to such
Borrower as part of such proposed Uncommitted Borrowing at a rate or rates
of interest specified by such Bank, in its sole discretion, by notifying
the Administrative Agent not later than the applicable Quote Deadline of
the minimum amount (if any) and maximum amount of each Uncommitted Advance
which such Bank would be willing to make as part of such proposed
Uncommitted Borrowing (which amounts may, subject to the proviso to the
first sentence of this Section 2.03(a), exceed such Bank's Commitment, if
any), the Uncommitted Borrowing Margin or Margins to be applied in the
determination of the rate or rates of interest therefor (or, if the Notice
of Uncommitted Borrowing shall have requested that fixed rates per annum be
quoted, the fixed rate or rates per annum therefor) and such Bank's
Applicable Lending Office with respect to such Uncommitted Advance. If any
Bank shall elect not to make such an offer, such Bank shall so notify the
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Administrative Agent before the applicable Quote Deadline, and such Bank
shall not be obligated to, and shall not, make any Uncommitted Advance as
part of such Uncommitted Borrowing; provided that the failure by any Bank
to give such notice shall not cause such Bank to be obligated to make any
Uncommitted Advance as part of such proposed Uncommitted Borrowing. The
Administrative Agent shall promptly notify the Company and, if applicable,
the applicable Borrowing Subsidiary of each Bank's response pursuant to
this paragraph (ii); provided, that if Bank One shall elect to make an
offer under this paragraph (ii), such offer shall be delivered to the
Company and, if applicable, the Borrowing Subsidiary not later than one-
half hour prior to the applicable Quote Deadline. Each Borrower shall be
entitled to assume that each quote of an Uncommitted Borrowing Margin or a
fixed rate per annum by a Bank includes, and such Bank shall not be
entitled to claim as additional interest or costs under Section 2.08 or
otherwise, any costs to such Bank in the nature of a reserve requirement,
assessment or other charge in connection with the Uncommitted Advance to
which such quote relates, except that such Bank shall be entitled to claim
increased costs and additional compensation under Section 2.12(a) and (b)
and Section 2.18, but solely with respect to the changes described in such
provisions that occur after the date such Uncommitted Advance is made.
"Quote Deadline" means, (x) in the case of a Fixed Rate Uncommitted
Borrowing, 9:00 A.M. (Chicago time) on the date of such proposed
Uncommitted Borrowing and (y) in the case of a Eurocurrency Rate
Uncommitted Borrowing, 9:00 A.M. (Chicago time) three Business Days prior
to the date of such proposed Uncommitted Borrowing.
(iii) Such Borrower, or the Company on behalf of such Borrower,
shall, in turn, before the applicable Acceptance Deadline, either
(A) cancel, without incurring an obligation on the part of
such Borrower or the Company to indemnify for losses, costs or
expenses under Section 2.02(d), such Uncommitted Borrowing by
giving the Administrative Agent notice to that effect, in which
case such Uncommitted Borrowing shall not be made, or
(B) accept one or more of the offers made by any Bank or
Banks pursuant to paragraph (ii) above, in its sole discretion
but in any event in ascending order of the fixed rates of
interest or Uncommitted Borrowing Margins (as applicable) offered
by all of the Banks responding to such Notice of Uncommitted
Borrowing, by giving notice to the Administrative Agent of the
relevant Banks and the respective amounts of each Uncommitted
Advance (each of which amounts shall be equal to or greater than
the minimum amount, and equal to or less than the maximum amount,
offered to be made by the respective Bank for such Uncommitted
Advance pursuant to Section 2.02(a)(ii) above) and reject any
remaining offers made by Banks pursuant to such Section by giving
the Administrative Agent notice to that effect. The Company
(either for itself or on behalf of a Borrowing Subsidiary) may
not accept offers which, in the aggregate, exceed the requested
Uncommitted Borrowing specified in the applicable Notice of
Uncommitted Borrowing. If two or more Banks
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bid at the same Uncommitted Borrowing Margin or fixed rate of
interest, as the case may be, and the amount of accepted offers
is less than the aggregate amount of such offers, the amount to
be borrowed from such Banks as part of such Uncommitted Borrowing
shall be allocated pro rata on the basis of the maximum amount
offered by each such Bank at such fixed rates or Uncommitted
Borrowing Margins in connection with such Uncommitted Borrowing.
The Administrative Agent shall promptly notify the Banks of each notice it
receives pursuant to this paragraph (iii). "Acceptance Deadline" means, (x)
in the case of an Uncommitted Borrowing to be denominated in Dollars, 10:00
A.M. (Chicago time) on the date of such proposed Uncommitted Borrowing and
(y) in the case of an Uncommitted Borrowing to be denominated in an
Alternative Currency, 4:00 P.M. (Chicago time) three Business Days prior to
the date of such proposed Uncommitted Borrowing.
(iv) If such Borrower accepts, or the Company accepts on such
Borrower's behalf, one or more of the offers made by any Bank or Banks
pursuant to Section 2.03(a)(iii)(B) above, the Administrative Agent shall
in turn promptly notify (A) each Bank that has made an offer pursuant to
Section 2.03(a)(ii) of the date and aggregate amount of such Uncommitted
Borrowing and whether or not any offer or offers so made by such Bank have
been accepted by such Borrower, (B) each Bank that is to make an
Uncommitted Advance as a part of such Uncommitted Borrowing, of the amount
of each Uncommitted Advance to be made by such Bank as part of such
Uncommitted Borrowing, and (C) each Bank that is to make an Uncommitted
Advance as part of such Uncommitted Borrowing, upon receipt, that the
Administrative Agent has received forms of documents appearing to fulfill
the applicable conditions set forth in Article III. Each Bank that is to
make an Uncommitted Advance as part of such Uncommitted Borrowing shall,
before 1:00 P.M. (Chicago time) on the date of such Uncommitted Borrowing
specified in the notice received from the Administrative Agent pursuant to
clause (A) of the preceding sentence or any later time when such Bank shall
have received notice from the Administrative Agent pursuant to subclause
(C) of the preceding sentence, make available to the Administrative Agent
at the Administrative Agent's Domestic Lending Office, in federal or
otherwise immediately available funds, such Bank's portion of such
Uncommitted Borrowing. After the Administrative Agent receives such funds
and when the applicable conditions set forth in Article III have been
fulfilled, the Administrative Agent will make such funds available to the
applicable Borrower at the Administrative Agent's aforesaid address.
Promptly after (x) each Uncommitted Borrowing, the Administrative Agent
will notify each Bank of the amount and date of the Uncommitted Borrowing
and the maturity date thereof and the Available Commitment of each Bank
after giving effect to such Uncommitted Borrowing and (y) the prepayment of
any Uncommitted Borrowing by or on behalf of such Borrower, the
Administrative Agent will notify each Bank of the amount and date of each
such prepayment and the Available Commitment of each Bank after giving
effect thereto.
(b) Each Uncommitted Borrowing shall be in an aggregate amount of not
less than $25,000,000 or an integral multiple of $1,000,000 in excess thereof,
or if the requested
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currency for such Advance is not Dollars, the equivalent of such amount
(determined in accordance with Section 2.16) or multiple in the requested
Alternative Currency.
(c) Within the limits and on the conditions set forth in this Section
2.03, each Borrower may from time to time borrow under this Section 2.03, repay
pursuant to subsection (d) below, and reborrow under this Section 2.03; provided
that an Uncommitted Borrowing shall not be made within three Business Days of
any other Uncommitted Borrowing.
(d) Each Borrower shall repay to the Administrative Agent, for the
account of each Bank which has made an Uncommitted Advance to such Borrower, on
the maturity date of each such Uncommitted Advance (such maturity date being
that specified for repayment of such Uncommitted Advance in the related Notice
of Uncommitted Borrowing delivered pursuant to Section 2.03(a)(i) above) the
then unpaid principal amount of such Uncommitted Advance. A Borrower shall not
have the right to prepay any principal amount of any Uncommitted Advance without
the consent of the Bank making such Advance.
(e) Each Borrower shall pay interest on the unpaid principal amount
of each Uncommitted Advance made to it, from the date of such Uncommitted
Advance to the date the principal amount of such Uncommitted Advance is repaid
in full, at the rate of interest for such Uncommitted Advance specified by the
Bank making such Uncommitted Advance in its notice with respect thereto
delivered pursuant to Section 2.03(a)(ii) above, payable on the interest payment
date or dates specified for such Uncommitted Advance in the related Notice of
Uncommitted Borrowing delivered pursuant to Section 2.03(a)(i) above.
(f) The Borrower of any Uncommitted Advance shall, promptly upon
request by the Bank making such Uncommitted Advance (either in the quote
delivered by such Bank pursuant to Section 2.03(a)(ii) or by notice to the
Administrative Agent), execute and deliver to the Administrative Agent an
Uncommitted Note payable to the order of such Bank in a principal amount equal
to the principal amount of such Uncommitted Advance and otherwise on such terms
as were agreed to for such Uncommitted Advance in accordance with Section 2.03.
SECTION 2.04 Facility Fee and Utilization Fee. (a) The Company and each
Borrowing Subsidiary jointly and severally agree to pay to the Administrative
Agent, for the account of each Bank other than a Designated Bidder, a facility
fee ("Facility Fee") on the average daily Commitment of such Bank from the date
hereof until the Termination Date (or, if the Company has made the Term Loan
Election, until the Maturity Date), payable in arrears on the first Business Day
of each January, April, July and October during the term of such Bank's
Commitment, commencing January 2, 2001, and on the Termination Date (or, if the
Company has made the Term Loan Election, on the Maturity Date), at a rate per
annum equal to 0.06%.
(b) To the extent, and for so long as, (i) the average daily
aggregate outstanding principal amount of Advances at any time exceeds one-half
of the aggregate Commitments at such time, and (ii) Category 3 Status, Category
4 Status or Category 5 Status exists, the Company and each Borrowing Subsidiary,
jointly and severally, agree to pay to each Bank other than a Designated Bidder
a utilization fee (the "Utilization Fee") equal to 0.05% per annum of the
aggregate principal amount of such Bank's Advances at such time. The Utilization
Fee shall be payable on each date the Facility Fee is payable.
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(c) Notwithstanding the foregoing, (i) any Facility Fee or
Utilization Fee accrued with respect to any Commitment of a Defaulting Bank
during the period prior to the time such Bank became a Defaulting Bank and
unpaid at such time shall not be payable by the Borrowers so long as such Bank
shall be a Defaulting Bank, except to the extent such Facility Fee or
Utilization Fee was due and payable prior to such time, and (ii) no Facility Fee
or Utilization Fee shall accrue on the Commitment of a Defaulting Bank so long
as such Bank is a Defaulting Bank.
SECTION 2.05 Reduction and Termination of the Commitments. (a) The Company
shall have the right, upon at least four (4) days' notice to the Administrative
Agent to terminate in whole or reduce ratably in part the unused portions of the
respective Commitments of the Banks, provided that the aggregate amount of the
Commitments of the Banks shall not be reduced to an amount which is less than
the aggregate principal amount of the Uncommitted Advances then outstanding and
provided, further, that each partial reduction shall be in an aggregate amount
of $10,000,000 or any integral multiple of $1,000,000 in excess thereof.
(b) Provided that no Event of Default shall have occurred and be
continuing, the Company may at any time replace any Bank, in whole but not in
part, by (i) giving such Bank and the Administrative Agent not less than ten
(10) Business Days' prior notice thereof, which notice shall be irrevocable and
effective only when received by such Bank and the Administrative Agent and shall
specify the effective date of such replacement, and (ii) effecting an assignment
of all of the Bank's Commitment and Advances in accordance with Section 9.07.
(c) On the Termination Date, if the Company has made the Term Loan
Election in accordance with Section 2.06(a) prior to such date, and from time to
time thereafter upon each prepayment of the Advances, the aggregate Commitments
of the Banks shall be automatically and permanently reduced on a pro rata basis
by an amount equal to the amount by which (i) the aggregate Commitments
immediately prior to such reduction exceeds (ii) the aggregate unpaid principal
amount of all Advances (determined in the case of any Advances denominated in an
Alternative Currency by reference to the Dollar Amount) outstanding at such
time.
SECTION 2.06 Payment; Conversion and Continuation. (a) On the
Termination Date, the Borrowers shall, subject to the next succeeding sentence,
repay to the Administrative Agent for the ratable account of the Banks, the
entire unpaid principal amount of the Advances made by each Bank. The Company
may, upon not less than 15 days' notice to the Administrative Agent, elect (the
"Term Loan Election") to convert all of the Advances outstanding on the
Termination Date in effect at such time into a term loan which the Borrowers
shall repay in full, together with all accrued interest, ratably to the Banks on
the Maturity Date, with any prepayment thereof subject to Section 2.11; provided
that the Term Loan Election may not be exercised if an event shall have occurred
and be continuing which constitutes an Event of Default or which would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both on the date of notice of the Term Loan Election or on the
date on which the Term Loan Election is to be effected. All Advances converted
to a term loan pursuant to this Section 2.06(a) shall continue to constitute
Advances except that the Borrowers may not reborrow pursuant to Section 2.01
after all or any portion of the Advances have been prepaid pursuant to Section
2.10.
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(b) Any Borrower may elect (x) to convert Base Rate Advances or any
portion thereof to Eurocurrency Rate Advances, (y) to convert Eurocurrency Rate
Advances or any portion thereof into Base Rate Advances, or (z) to continue any
Eurocurrency Rate Advance or any portion thereof for an additional Interest
Period; provided, however, that the aggregate amount of Base Rate Advances being
converted into Eurocurrency Rate Advances or of Eurocurrency Rate Advances being
continued shall, in the aggregate, equal $20,000,000 or an integral multiple of
$1,000,000 in excess thereof. The applicable Interest Period for the
continuation of any Eurocurrency Rate Advance shall commence on the day on which
the immediately-preceding Interest Period expires. Each conversion or
continuation shall be allocated among the Committed Advances of each Bank in
accordance with its Pro Rata Share of the amount so converted or continued. Each
such election shall be in substantially the form of Exhibit F (a "Notice of
Conversion or Continuation") and shall be made by giving the Administrative
Agent notice by 10:00 a.m. (Chicago time) on the date of such conversion or
continuation, in the case of a conversion to a Base Rate Advance, giving the
Administrative Agent at least three Business Days' prior written notice thereof
in the event of a conversion to or continuation of a Eurocurrency Advance
specifying, in each case (i) whether a conversion or continuation is to take
place, (ii) what Advances are to be converted or continued, and if converted,
the Type of Advance to which it is to be converted, (iii) the amount of the
conversion or continuation, (iv) the Interest Period therefor and (v) in the
case of a conversion, the date of conversion (which date shall be a Business
Day). The Administrative Agent shall promptly notify each Bank of its receipt of
a Notice of Conversion or Continuation by sending such Bank a copy thereof. If,
within the time period required under the terms of this Section 2.06(b), the
Administrative Agent does not receive a Notice of Conversion or Continuation
from the applicable Borrower containing an election to continue or convert any
Advances for an additional Interest Period, then, upon the expiration of the
Interest Period therefor, such Advances will be automatically converted to Base
Rate Advances.
SECTION 2.07 Interest on Committed Advances. Each Borrower shall pay
interest on the unpaid principal amount of each Committed Advance made by each
Bank to it from the date of such Committed Advance until such principal amount
shall be paid in full, at the following rates per annum:
(a) Base Rate Advances. During such period as such Committed Advance
is a Base Rate Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable quarterly in arrears on the first Business Day
of each January, April, July and October, commencing January 2, 2001, and on the
Termination Date (or, if the Company has made the Term Loan Election, on the
Maturity Date). The Administrative Agent shall give notice to the Company and
the applicable Borrower (if other than the Company) and each Bank of any change
in the Base Rate promptly after such change occurs, but the Administrative
Agent's failure to give such notice shall not affect the obligation of the
Company or such Borrower to pay interest at such rate when it becomes due and
payable.
(b) Eurocurrency Rate Advances. During such period as such Committed
Advance is a Eurocurrency Rate Advance, a rate per annum equal at all times
during each Interest Period for such Committed Advance to the sum of the
Eurocurrency Rate for such Interest Period plus the Applicable Margin, payable
on the last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day which occurs during
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such Interest Period every three months from the first day of such Interest
Period and on the date such Eurocurrency Rate Advance shall be converted or paid
in full.
(c) Default Interest. Notwithstanding the foregoing provisions of
this Section 2.07, any amount of principal and fees and, to the extent permitted
by law, interest, that is not paid when due (whether at stated maturity, by
acceleration or otherwise) shall bear interest, from the date on which such
amount is due until such amount is paid in full, payable in arrears on the date
such amount shall be paid in full and on demand, at a rate per annum equal at
all times to 1% per annum above (i) in the case of principal, the rate of
interest otherwise thereto from time to time in accordance with the terms
hereof, and (ii) in the case of interest and fees, the Base Rate in effect from
time to time.
SECTION 2.08 Additional Interest on Eurocurrency Rate Advances. Each
Borrower shall pay to each Bank other than Designated Bidders, so long as and to
the extent such Bank shall be required under regulations of the Board of
Governors of the Federal Reserve System (or any similar authority outside the
United States, in the case of Committed Advances in Alternative Currencies) to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency Rate
Advances in the applicable Alternative Currency is determined) and such Bank's
performance under this Agreement (and other like agreements) shall have given
rise to additional reserve requirements for such Bank thereunder, additional
interest on the unpaid principal amount of each Committed Advance constituting a
Eurocurrency Rate Advance of such Bank made to such Borrower, from the date of
such Committed Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurocurrency Rate for the applicable Interest Period for
such Committed Advance from (ii) the rate obtained by dividing such Eurocurrency
Rate by a percentage equal to 100% minus the Eurocurrency Rate Reserve
Percentage of such Bank for such Interest Period, payable on each date on which
interest is payable on such Committed Advance. Such Bank shall, not later than
the last day of the applicable Interest Period, provide notice to the
Administrative Agent, the Company and, if other than the Company, the applicable
Borrower of any such additional interest arising in connection with such
Committed Advance. Such additional interest so notified on a timely basis by any
Bank shall be payable to the Administrative Agent for the account of such Bank
on the dates specified for payment of interest for such Committed Advance in
Section 2.07.
SECTION 2.09 Interest Rate Determination.
(a) The Administrative Agent shall give prompt notice to the Company
and the applicable Borrower (if other than the Company) and each of the Banks
(other than the Designated Bidders) of the applicable interest rate determined
by the Administrative Agent for purposes of Section 2.07(a) or (b).
(b) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Committed Borrowing shall be reduced,
by payment, prepayment or otherwise, to less than $20,000,000, such Advances
shall automatically convert into Base Rate Advances and such conversion shall be
subject to Section 2.11.
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SECTION 2.10 Prepayments. A Borrower may prepay, on any Business Day
following notice by 11:00 a.m. (Chicago time) on such Business Day to the
Administrative Agent (in the case of Base Rate Advances) and on three Business
Days' prior notice to the Administrative Agent (in the case of Eurocurrency Rate
Advances), each Committed Borrowing made to such Borrower, in whole or in part.
Such notice shall include the proposed date and aggregate principal amount of
such prepayment, and if such notice is given, such Borrower shall prepay such
principal amount, together with accrued interest to the date of such prepayment
on the principal amount prepaid. Any amounts payable, if any, pursuant to
Section 2.11 hereof in connection with any prepayment shall be paid on the date
of such prepayment; provided, however, that each partial prepayment shall be in
an aggregate principal amount of not less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof. Subject to Sections 2.12 and 2.13,
each prepayment of a Committed Borrowing shall be made to each Bank in
accordance with such Bank's Pro Rata Share thereof. The Company shall, on the
first Business Day of each January, April, July and October, if the aggregate
outstanding principal Dollar Amount of all Advances, calculated by the
Administrative Agent on the seventh Business Day prior to such payment date and
reported to the Company by the fifth Business Day prior to such payment date,
exceeds (as the result of fluctuations in applicable foreign exchange rates or
otherwise) 105% of the then aggregate amount of the Banks' Commitments
(calculated as aforesaid), prepay a Committed Borrowing or Borrowings (in whole
or in part, and in any case as selected by the Company) in an aggregate Dollar
Amount (calculated as aforesaid, and rounded upward, if necessary, to the
nearest $1,000,000) equal to the excess of:
(i) the aggregate principal Dollar Amount (calculated as
aforesaid) of Advances outstanding, over
(ii) the then aggregate amount of the Banks' Commitments
(calculated as aforesaid).
Each prepayment of any Committed Borrowing (in whole or in part) made pursuant
to this Section 2.10 shall be without premium or penalty, but shall be subject
to the provisions of Section 2.11. Any mandatory prepayment of a Committed
Borrowing shall be made to the Administrative Agent for the account of each Bank
based on such Bank's Pro Rata Share of such Committed Borrowing and shall
include accrued and unpaid interest on the principal amount prepaid and all
amounts owing under Section 2.11.
SECTION 2.11 Funding Indemnification. If any payment of principal of any
Advance (other than a Base Rate Advance) is made other than on the last day of
an Interest Period for such Advance, as a result of acceleration of the maturity
of the Advances pursuant to Section 6.01 or for any other reason, or if any
Eurocurrency Rate Advance is converted to a Base Rate Advance pursuant to
Section 2.13(b) on any day other than the last day of an Interest Period for
such Eurocurrency Rate Advance, the applicable Borrower shall, upon demand by
any Bank (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank any amounts required to
compensate such Bank for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or conversion, including without
limitation any loss (excluding loss of anticipated profits), cost or expense
reasonably incurred as a result of the liquidation or re-employment of deposits
or other funds acquired by such Bank to fund or maintain such Advance.
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SECTION 2.12 Increased Costs and Reduced Return. (a) Subject to the
limitation in Section 2.03(a)(ii), if, due to either (i) the introduction of or
any change (other than any change by way of imposition or increase of reserve
requirements, in the case of Eurocurrency Rate Advances, included in the
Eurocurrency Rate Reserve Percentage), after the date hereof, in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law) issued after the date hereof, there
shall be any increase in the cost to any Bank of agreeing to make, making,
funding or maintaining Eurocurrency Rate Advances (including, without
limitation, any conversion of any Advance denominated in an Alternative Currency
other than the Euro into an Advance denominated in Euro), by an amount
reasonably deemed by such Bank to be material, then from time to time, within
ten days after demand by such Bank (with a copy of such demand to the
Administrative Agent), such Borrower shall pay to the Administrative Agent for
the account of such Bank additional amounts sufficient to compensate such Bank
for such increased cost; provided that no Borrower shall be obligated to pay any
such amount to the extent such amount results from a change, guideline or
request which took effect more than 90 days prior to the date of such demand.
(b) Subject to the limitation in Section 2.03(a)(ii), if any Bank
shall have determined that the adoption, after the date hereof, of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office) with any request or directive issued after the date
hereof regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital as a consequence of
its obligations hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance by an amount reasonably
deemed by such Bank to be material, then from time to time, within ten days
after demand by such Bank (with a copy of such demand to the Administrative
Agent), the Company shall pay to the Administrative Agent for the account of
such Bank such additional amount or amounts as will compensate such Bank, in
light of such circumstances, to the extent such Bank reasonably determines such
reduction to be allocable to the existence of such Bank's Commitment; provided
that no Borrower shall be obligated to pay any such amount to the extent such
amount results from an adoption, change, request or directive which took effect
or was issued more than 90 days prior to the date of such demand.
(c) Each Bank will promptly notify the Administrative Agent and the
Company of any event of which it has knowledge, occurring after the date hereof,
which would entitle such Bank to compensation pursuant to this Section 2.12. A
certificate of any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall create a
rebuttable presumption as to the correctness of such additional amount or
amounts. Each Bank agrees not to request any payment under this Section 2.12
unless similar requests are then generally being made by such Bank of other
borrowers similarly situated, and to use a reasonable basis for calculating
amounts allocable to its Commitment hereunder.
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SECTION 2.13 Illegality. (a) If any Bank shall determine (which
determination shall be rebuttably presumed correct as to all parties) at any
time that the making or continuance of its Eurocurrency Rate Advances has become
unlawful because of the introduction of or any change in or in the
interpretation of any law or regulation or because of the assertion of
unlawfulness by any central bank or other governmental authority, then, in any
such event, such Bank shall give prompt notice (by telephone confirmed in
writing) to the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each Borrower and the other
Banks).
(b) Upon the giving of the notice to the Company referred to in
subsection (a) above, if the affected Advances are then outstanding, each
Borrower shall, upon at least one Business Day's written notice to the
Administrative Agent and the affected Bank, or if permitted by applicable law no
later than the date permitted thereby, in such Borrower's sole discretion,
either (i) prepay the principal amount of all outstanding Advances of such Bank
to which such notice relates, together with accrued interest thereon to the date
of payment, or (ii) convert each such Advance into a Base Rate Advance
denominated in Dollars and, in each case, be obligated to reimburse the Banks in
respect thereof pursuant to Section 2.11 hereof. If more than one Bank gives
notice pursuant to Section 2.13(a) at any time, then all outstanding Advances of
the affected Type or currency of such Banks must be treated in the same manner
by the Borrowers pursuant to this subsection 2.13(b) and the Banks' obligations
to make, convert or continue Eurocurrency Rate Advances shall be suspended until
the Administrative Agent notifies the Borrowers that the circumstances causing
such suspension no longer exist.
SECTION 2.14 Payments and Computations. (a) The Company and each Borrowing
Subsidiary shall make each payment hereunder and under the Notes without set-
off, counterclaim or other deduction by causing a wire transfer of immediately-
available funds to be initiated to the Administrative Agent in an amount equal
to such payment not later than 12:00 noon (Chicago time) on the day when due
from the Company or such Borrowing Subsidiary. The Administrative Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or fees ratably (other than amounts payable pursuant to
Sections 2.03, 2.05(b), 2.08, 2.11, 2.12, 2.15, 2.18 or 2.19) to the Banks for
the account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Bank to such Bank for
the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. All such payments shall be made in
Dollars, except that payments of principal of and interest on Borrowings in an
Alternative Currency shall be made in such Alternative Currency or, where such
Alternative Currency has converted to the Euro, in the Euro; provided that if
the applicable Borrower fails to make any payment of principal or interest with
respect to any Borrowing in an Alternative Currency (including the Euro) on the
due date thereof because such Alternative Currency has ceased to be freely
transferable and convertible into Dollars in the international currency and
exchange markets, such failure shall not constitute an Event of Default or an
event which would constitute an Event of Default but for the requirement that
notice be given or time elapse or both, if such Borrower pays the equivalent in
Dollars of such payment on the due date thereof. In addition to any such Dollar
payment, such Borrower agrees to pay to each affected Bank an indemnity payment
within five Business Days after such Borrower shall have received a certificate
from such Bank setting forth in reasonable detail the amount of any loss, cost,
damage or expense suffered by such Bank as a consequence of such inability to
make any such payment
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in such Alternative Currency on the due date thereof. Each Bank agrees to use
reasonable efforts to avoid or minimize all such loss, cost, damage or expense.
(b) All computations of interest based on the Base Rate, or the
Eurocurrency Rate applicable to Borrowings denominated in Sterling, shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurocurrency Rate
(as to all other currencies) or the Federal Funds Rate, all computations of
interest pursuant to Section 2.08 and all computations of the Facility Fee and
the Utilization Fee shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent
(or, in the case of Section 2.08, by a Bank) of an interest rate or fee owing
hereunder shall create a rebuttable presumption as to the correctness of such
determination.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fee, as the case may be;
provided, however, if such extension would cause payment of interest on or
principal of Eurocurrency Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Administrative Agent shall have received notice from
the applicable Borrower prior to the date on which any payment is due to the
Banks hereunder that such Borrower will not make such payment in full, the
Administrative Agent may assume that such Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent such
Borrower shall not have so made such payment in full to the Administrative
Agent, each Bank shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank together with interest thereon, for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.15 Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Committed Advances made by it (other
than pursuant to Sections 2.08, 2.11, 2.12, 2.13(b), 2.18 or 2.19) in excess of
its ratable share of payments on account of the Committed Advances obtained by
all the Banks, such Bank shall forthwith purchase from the other Banks such
participations in the Committed Advances made by them as shall be necessary to
cause such purchasing Bank to share the excess payment ratably with each of
them, provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Bank, such purchase from each Bank
shall be rescinded and such Bank shall repay to the purchasing Bank the purchase
price to the extent of such recovery together with an amount equal to such
Bank's ratable share (according to the proportion of (i) the amount of such
Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Each Borrower
agrees that any Bank so purchasing a participation from another Bank
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with respect to Advances made to such Borrower pursuant to this Section 2.15
may, to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.16 Currency Equivalents. (a) For purposes of this Article II,
(i) the equivalent in Dollars of any Alternative Currency shall be determined by
using the arithmetical mean of the buy and sell spot rates at which Bank One's
principal office in London exchanges Dollars for such Alternative Currency in
the interbank market in London at 11:00 A.M. (London time) two Business Days
prior to the date on which such equivalent is to be determined, (ii) the
equivalent in any Alternative Currency of any other Alternative Currency shall
be determined by using the arithmetical mean of the buy and sell spot rates at
which Bank One's principal office in London exchanges such Alternative Currency
for the equivalent in such other Alternative Currency in London at 11:00 A.M.
(London time) two Business Days prior to the date on which such equivalent is to
be determined, and (iii) the equivalent in any Alternative Currency of Dollars
shall be determined by using the arithmetical mean of the buy and sell spot
rates at which Bank One's principal office in London exchanges such Alternative
Currency for Dollars in London at 11:00 A.M. (London time) two Business Days
prior to the date on which such equivalent is to be determined. The equivalent
in Dollars of each Eurocurrency Rate Advance made in an Alternative Currency
shall be recalculated hereunder on each day that it is necessary to determine
the unused portion of each Bank's Commitment, or any or all of the Advances on
such date.
(b) If for the purpose of obtaining a judgment in any court with
respect to any obligation of a Borrower hereunder, it shall become necessary for
the Administrative Agent or any Bank entitled to receive payments hereunder to
convert any amount into a currency other than the currency denominated hereunder
for such obligation, then such conversion shall be made on the basis of rates
(the "Exchange Rates") determined in the manner described in subsection (a)
above (or, if the applicable currency to be converted is not at the time of
conversion available in the interbank market in London, then in such other
interbank market as the Administrative Agent shall determine to have adequate
availability of such currency) and the date with respect to which such an
equivalent is to be determined shall be the first Business Day preceding the
date on which final judgment is entered. If pursuant to any such judgment
conversion is to be made with respect to a date other than the date referred to
above, and there shall occur a change between the Exchange Rates in effect on
such date and the Exchange Rates in effect on the date of payment, (i) the
applicable Borrower agrees to pay such additional amounts (if any) as may be
necessary to ensure that the amount paid is the amount in such other currency
which, when converted at the Exchange Rates as in effect on the date of payment
or distribution, is the amount then due hereunder in the relevant currency and
(ii) such Borrower shall not be required to pay any amount in excess of the
amount determined to be payable in connection with such obligation, calculated
on the basis of the Exchange Rates in effect on the first Business Day preceding
the date on which final judgment is entered. Any amount due from a Borrower
under this subsection (b) shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder.
SECTION 2.17 Borrowing Subsidiaries. The Company may at any time or from
time to time add as a party to this Agreement any Subsidiary of the Company to
be a "Borrowing
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Subsidiary" hereunder by causing such Subsidiary to execute and deliver a duly
completed Assumption Letter to the Administrative Agent, with the written
consent of the Company at the foot thereof. Upon such execution, delivery and
consent such Subsidiary shall for all purposes be a party hereto as a Borrowing
Subsidiary as fully as if it had executed and delivered this Agreement. So long
as the principal of and interest on all Advances made to any Borrowing
Subsidiary under this Agreement shall have been paid in full and all other
obligations of such Borrowing Subsidiary shall have been fully performed, such
Borrowing Subsidiary may, by not less than five Business Days' prior notice to
the Administrative Agent (which shall promptly notify the Banks thereof),
terminate its status as a "Borrowing Subsidiary."
SECTION 2.18 Taxes. (a) Any and all payments by a Borrower hereunder or
under the Notes shall be made in accordance with Section 2.14, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Administrative Agent, taxes imposed
on its income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank or the Administrative Agent is organized or any
political subdivision thereof and taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Bank's Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Bank or the Administrative Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.18) such Bank or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no deductions been made, (ii)
such Borrower shall make such deductions and (iii) such Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.18) paid by such Bank or the Administrative Agent
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted; provided, that the Borrowers shall have no obligation under
this subsection (c) to indemnify any Bank or the Administrative Agent if a
Borrower shall have performed its obligations under subsection (a) and (b),
thereby providing such Bank or the Administrative Agent (as the case may be) the
wherewithal to make payment, or demonstrate that payment has been made, of any
such Taxes or Other Taxes, and such Bank or the Administrative Agent (as the
case may be) shall not have effected such payment or made such demonstration of
payment on a timely basis to the relevant taxing authorities. This
indemnification shall be made to the Administrative Agent for the account of
such Bank or the
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Administrative Agent (as the case may be) within 30 days from the date such Bank
or the Administrative Agent makes written demand therefor (with a copy, in the
case of a demand by a Bank, of such demand to the Administrative Agent).
(d) Notwithstanding the foregoing, unless, prior to the date of the
initial Committed Borrowing (in the case of a Bank listed on Schedule I hereto),
and prior to the effective date of the Assignment and Acceptance by which it
became a Bank (in the case of bank that became a Bank pursuant to such
Assignment and Acceptance), and in each case from time to time thereafter, if
requested by any Borrower,
(i) each Bank organized under the laws of a jurisdiction outside
the United States shall have provided the Company with the forms prescribed
by the Internal Revenue Service of the United States certifying as to such
Bank's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to such Bank
hereunder or other documents satisfactory to the Company which shall
indicate that all payments to be made to such Bank hereunder are not
subject to United States withholding tax or are subject to such taxes at a
rate reduced to zero by an applicable tax treaty, neither the Company nor
any other Borrower shall have any obligation under the last sentence of
Section 2.18(a) to make any payments to or for the benefit of such Bank in
excess of the amounts otherwise payable under this Agreement, and
(ii) each Bank organized under the laws of a jurisdiction
outside the jurisdiction where any Borrowing Subsidiary is incorporated
shall have taken all steps prescribed by the applicable governmental
authority in the jurisdiction where such Borrowing Subsidiary is located so
that such Bank is exempt from applicable withholding taxes with respect to
all payments to be made to such Bank hereunder or so that all payments to
be made to such Bank hereunder are not subject to applicable withholding
taxes or are subject to such taxes at a rate reduced to zero by an
applicable tax treaty, neither the Company nor any other Borrower shall
have any obligation under the last sentence of Section 2.18(a) to make any
payments to or for the benefit of such Bank in excess of the amounts
otherwise payable under this Agreement; provided, however, that the
applicable Borrower shall make the payments required by the last sentence
of Section 2.18(a) if the obligation to withhold arises from a change in
applicable law after the date hereof (or, with respect to payments to a new
Applicable Lending Office designated pursuant to Section 2.20, after the
date such Bank designates such new Applicable Lending Office).
Unless the applicable Borrower has received forms or other documents, including
Form W-8ECI, Form W-8BEN or any other applicable tax forms from the United
States or any other applicable jurisdiction, such forms to be satisfactory to
the Company, indicating that payments hereunder are not subject to any
withholding tax or are subject to such tax at a rate reduced to zero by an
applicable tax treaty, the applicable Borrower shall withhold taxes from such
payments at the applicable statutory rate in the case of payments to or for any
Bank organized under the laws of a jurisdiction outside the United States (or in
the case of a Borrowing Subsidiary incorporated outside the United States, any
Bank organized under the laws outside of the jurisdiction where such Borrowing
Subsidiary is incorporated). Should a Bank become subject to Taxes because of
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its failure or inability to deliver a form required hereunder, the Company shall
take such steps not requiring the expenditure of money as the Bank shall
reasonably request to assist the Bank to recover such Taxes.
SECTION 2.19 Defaulting Banks. (a) If at any time (i) any Bank shall be a
Defaulting Bank, (ii) such Defaulting Bank shall owe a Defaulted Advance to the
Borrower and (iii) the Borrower shall be required to make any payment hereunder
or under any Note to or for the account of such Defaulting Bank, then the
Borrower may, so long as no Event of Default shall have occurred and be
continuing at such time and to the fullest extent permitted by applicable law,
set off and otherwise apply the amount owed by the Borrower to or for the
account of such Defaulting Bank against the obligation of such Defaulting Bank
to make such Defaulted Advance. If the Borrower shall so set off and otherwise
apply the amount owed by the Borrower to or for the account of such Defaulting
Bank against the obligation of such Defaulting Bank to make any such Defaulted
Advance on any date, the amount so set off and otherwise applied by the Borrower
shall constitute for all purposes of this Agreement and the Notes an Advance by
such Defaulting Bank made on the date of such setoff. Such Advance shall be a
Base Rate Advance and shall be considered, for all purposes of this Agreement,
to comprise part of the Borrowing in connection with which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01 or
Section 2.03(a), as the case may be, even if the other Advances comprising such
Borrowing shall be Eurocurrency Rate Advances on the date such Advance is deemed
to be made pursuant to this Section 2.19(a). The Borrower shall notify the
Administrative Agent at any time the Borrower makes a setoff under this Section
2.19(a) and shall specify in such notice (A) the name of the Defaulting Bank and
the Defaulted Advance required to be made by such Defaulting Bank and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this Section 2.19(a). Any part of such payment otherwise required to
be made by the Borrower to or for the account of such Defaulting Bank that is
paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this Section 2.19(a), shall be applied by
the Administrative Agent as specified in Section 2.19(b) or 2.19(c).
(b) If at any time (i) any Bank shall be a Defaulting Bank, (ii) such
Defaulting Bank shall owe a Defaulted Amount to the Administrative Agent or any
of the other Banks and (iii) the Borrower shall make any payment hereunder or
under any Note to the Administrative Agent for the account of such Defaulting
Bank, then the Administrative Agent may, on its behalf or on behalf of such
other Banks and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Bank to the payment of each such Defaulted Amount to the extent required to pay
such Defaulted Amount. If the Administrative Agent shall so apply any such
amount to the payment of any such Defaulted Amount on any date, the amount so
applied by the Administrative Agent shall constitute for all purposes of this
Agreement and the Notes payment to such extent of such Defaulted Amount on such
date. Any such amount so applied by the Administrative Agent shall be retained
by the Administrative Agent or distributed by the Administrative Agent to such
other Banks, ratably in accordance with their respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent and such
other Banks and, if the amount of such payment made by the Borrower shall at any
time be insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent and the other Banks, in the following order of priority:
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(A) first, to the Administrative Agent for any Defaulted
Amounts owing to the Administrative Agent (solely in its capacity
as Administrative Agent) at such time; and
(B) second, to the other Banks for any Defaulted Amounts
owing to the other Banks (solely in their capacity as Banks) at
such time, ratably in accordance with such respective Defaulted
Amounts owing to each other Bank (solely in its capacity as a
Bank) at such time.
Any part of such payment made by the Borrower for the account of such Defaulting
Bank remaining, after giving effect to the amount applied by the Administrative
Agent pursuant to this Section 2.19(b), shall be applied by the Administrative
Agent as specified in Section 2.19(c).
(c) If at any time, (i) any Bank shall be a Defaulting Bank, (ii)
such Defaulting Bank shall not owe a Defaulted Advance or a Defaulted Amount and
(iii) the Borrower, the Administrative Agent or any other Bank shall be required
to pay or to distribute any amount hereunder or under any Note to or for the
account of such Defaulting Bank, then the Borrower or such other Bank shall pay
such amount to the Administrative Agent to be held by the Administrative Agent,
to the fullest extent permitted by applicable law, in escrow or the
Administrative Agent shall, to the fullest extent permitted by applicable law,
hold in escrow such amount otherwise held by it. Any funds held by the
Administrative Agent in escrow under this Section 2.19(c) shall be deposited by
the Administrative Agent in an account with Bank One, in the name and under the
control of the Administrative Agent, but subject to the provisions of this
Section 2.19(c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be Bank One's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from time to time
shall be held by the Administrative Agent in escrow under, and applied by the
Administrative Agent from time to time in accordance with the provisions of,
this Section 2.19(c). The Administrative Agent shall, to the fullest extent
permitted by applicable law, apply all funds so held in escrow from time to time
to the extent necessary to make any Advances required to be made by such
Defaulting Bank and to pay any amount payable by such Defaulting Bank hereunder
to the Administrative Agent or any other Bank, as and when such Advances or such
amounts are required to be made or paid and, if the amount so held in escrow
shall any time be insufficient to make and pay all such Advances and all such
amounts required to be made or paid at such time, in the following order of
priority:
(A) first, to the Administrative Agent for any amounts due
and payable by such Defaulting Bank to the Administrative Agent
hereunder (solely in its capacity as Administrative Agent) at
such time;
(B) second, to the other Banks for any amounts due and
payable by such Defaulting Bank to the other Banks hereunder
(solely in their capacity as Banks) at such time, ratably in
accordance with such respective amounts due and payable to each
other Bank (solely in its capacity as Bank) at such time; and
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(C) third, to the Borrower for any Advances required to be
made by such Defaulting Bank pursuant to the Commitment of such
Defaulting Bank at such time.
If such Defaulting Bank shall, at any time, cease to be a Defaulting Bank,
any funds held by the Administrative Agent in escrow at such time with respect
to such Defaulting Bank shall be distributed by the Administrative Agent to such
Defaulting Bank and applied by such Defaulting Bank to the amounts owing to such
Defaulting Bank at such time under this Agreement in accordance with the terms
of this Agreement.
(d) The rights and remedies against a Defaulting Bank under this
Section 2.19 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Bank with respect to any Defaulted Advance and that
the Administrative Agent or any other Bank may have against such Defaulting Bank
with respect to any Defaulted Amount.
SECTION 2.20 Mitigation. Any Bank claiming any additional amounts payable
pursuant to Sections 2.12 or 2.18 or subject to Section 2.13 shall use its
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any
such additional amounts which may thereafter accrue under Sections 2.12 or 2.18
or would avoid the unavailability of Eurocurrency Rate Advances under Section
2.13 and would not, in any such case, in the judgment of such Bank, be otherwise
disadvantageous to such Bank.
SECTION 2.21 European Economic and Monetary Union. (a) Advances in the
Euro. If any Advance is capable of being made in either the Euro or in a
National Currency Unit, then such Advance shall be made in the Euro.
(b) Rounding and Other Consequential Changes. Without prejudice to
any method of conversion or rounding prescribed by any legislative measures of
the Council of the European Union, each reference in this Agreement to a fixed
amount or to fixed amounts in a National Currency Unit to be paid to or by the
Administrative Agent shall, notwithstanding any other provision of this
Agreement and to the extent the Euro has replaced such National Currency Unit,
be replaced by a reference to such comparable and convenient fixed amount or
fixed amounts of the Euro as the Administrative Agent may from time to time
reasonably specify.
SECTION 2.22 Extension of Termination Date. (a) The Company may, by
written notice to the Administrative Agent (each such notice being an "Extension
Request") given no more than 59 days nor less than 30 days prior to each
anniversary date of this Agreement, extend the then applicable Termination Date
to a date 364 days after the then-applicable Termination Date; provided,
however, that such extension shall be effective only with respect to a Bank
which, by a written notice (a "Continuation Notice") to the Company and the
Administrative Agent given no more than 30 days and no less than 15 days before
such anniversary date, consents to such extension (each Bank giving a
Continuation Notice thereafter being referred to as a "Continuing Bank" and each
Bank other than a Continuing Bank being a "Non-Extending Bank"); provided
further, however, that the Borrowers shall not have made the
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Term Loan Election for Advances outstanding on such Termination Date prior to
such time; provided further, however, that such extension shall be effective
only if the aggregate Commitments of the Continuing Banks are not less than 51%
of the aggregate Commitments in effect at the date the Company gives the
applicable Extension Request. Within five Business Days after the Administrative
Agent receives an Extension Request it shall notify each Bank thereof. If any
Bank fails to notify the Administrative Agent in writing of its consent to, or
refusal of, any such Extension Request at least 15 days prior to such
anniversary date, such Bank shall be deemed to be a Non-Extending Bank with
respect to such Extension Request. The Commitment of each Non-Extending Bank
shall terminate on the Termination Date in effect for such Non-Extending Bank
immediately prior to such Extension Request, and on such Termination Date the
Company shall pay the Administrative Agent, for the account of such Non-
Extending Banks, an amount equal to such Non-Extending Banks' Advances plus
accrued but unpaid interest and fees thereon; provided that the Company has not
replaced such Non-Extending Banks pursuant to Section 2.22(b) below.
(b) A Non-Extending Bank shall be obligated, at the request of the
Company and subject to the Non-Extending Bank receiving payment in full of (i)
the principal amount of all Advances owing to such Non-Extending Bank, and (ii)
all accrued interest and fees owing to such Non-Extending Bank and all other
amounts owing to such Non-Extending Bank hereunder, to assign without recourse,
representation, warranty (other than good title to its Advances) or expense to
such Non-Extending Bank, at any time prior to the Termination Date applicable to
such Non-Extending Bank, all of its rights (other than rights that would survive
the termination of this Agreement pursuant to Section 9.13) and obligations
hereunder to one or more Eligible Assignees (the "Replacement Banks") nominated
by the Company and willing to take the place of such Non-Extending Bank;
provided that each such Replacement Bank satisfies all the requirements of this
Agreement and the Administrative Agent shall have consented to such assignment,
which consent shall not be unreasonably withheld. Each such Replacement Bank
shall become a Continuing Bank hereunder in replacement for the Non-Extending
Bank.
(c) If the Termination Date shall have been extended in respect of
Continuing Banks in accordance with Section 2.22(a), any notice of borrowing
specifying a date for the borrowing of an Advance occurring after the
Termination Date applicable to a Non-Extending Bank or requesting an Interest
Period extending beyond such date shall (a) have no effect in respect of such
Non-Extending Bank and (b) not specify a requested aggregate principal amount
exceeding the Aggregate Commitment excluding the Commitments of all such Non-
Extending Banks.
(d) If the Termination Date shall have been extended in respect of
Continuing Banks in accordance with this Section 2.22, all references herein to
the "Termination Date" shall, with respect to all parties hereto other than Non-
Extending Banks, refer to the Termination Date as so extended.
SECTION 2.23 Increase of Aggregate Commitments. (a) The Company may from
time to time, on the terms set forth below, request that the aggregate amount of
the Commitments be increased to an amount which does not exceed $400,000,000;
provided, however, that an increase in the Commitments hereunder may only be
made at a time when (i) no Event of Default or event which, with notice or the
passage of time or both, would constitute an Event of
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Default shall have occurred and be continuing or would result therefrom and (ii)
the Public Debt Rating from S&P is at least BBB- and the Public Debt Rating from
Moody's is at least Baa3.
(b) If the Company requests an increase in the aggregate Commitments:
(i) each of the Banks shall be given the opportunity to
participate in the increased aggregate Commitments (x) initially, ratably
in accordance with its Pro Rata Share, and (y) next, to the extent that the
requested increase in the aggregate Commitments is not fulfilled pursuant
to the preceding clause (x) and subject to Section 2.23(d) below, in such
additional amounts as any Bank and the Company agree, and
(ii) if, after each Bank has been afforded an opportunity to
increase its Commitment to satisfy the Company's requested increase, the
aggregate increase in the Commitments offered by the Banks is less than the
Company's requested increase, then the Company shall consult with the
Administrative Agent as to the number, identity and requested Commitments
of additional financial institutions which the Company may, with the
written consent of the Administrative Agent (which consent shall not be
unreasonably withheld) invite to participate in the aggregate Commitments.
(c) No Bank shall have any obligation to increase its Commitment
pursuant to a request by the Company hereunder. No Bank shall be deemed to have
approved an increase in its Commitment unless such approval is in writing.
Failure on the part of any Bank to respond to a request by the Company within 30
days of such Bank's receipt of notice of such request hereunder shall be deemed
a rejection of such request.
(d) In no event shall any Bank's Commitment, after giving effect to
an increase in its Commitment hereunder, exceed 25% of the aggregate Commitments
under this Agreement.
(e) If the Company and one or more of the Banks (or other financial
institutions) shall agree upon such an increase in the aggregate Commitments
hereunder (i) the Company, the Administrative Agent and each Bank or other
financial institution increasing its Commitment or extending a new Commitment
shall enter into a consent in the form of Exhibit G hereto and (ii) the Company
shall furnish new Notes to each financial institution that is extending a new
Commitment and to each Bank which is increasing its Commitment. Notwithstanding
anything else to the contrary contained in Section 2.06(b), if an increase in
the aggregate Commitments pursuant to this Section 2.23 occurs during an
Interest Period for an outstanding Committed Borrowing, (a) such Committed
Borrowing may not be continued or converted pursuant to Section 2.06(b) and (b)
such Committed Borrowing shall be due and payable at the end of the current
Interest Period applicable thereto, without prejudice to the Company's right,
subject to the terms and conditions of this Agreement, to reborrow all or any
portion of the amount of such Committed Borrowing.
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ARTICLE III
CONDITIONS PRECEDENT
--------------------
SECTION 3.01 Conditions Precedent to Effectiveness of Sections 2.01 and
2.03. Sections 2.01 and 2.03 shall become effective on the first day (the
"Effective Date") on which all of the following conditions precedent have been
satisfied:
(a) The Administrative Agent shall have received the following, in
form and substance reasonably satisfactory to the Administrative Agent and
(except for the Committed Notes) in sufficient copies for the Banks:
(i) This Agreement, executed by the Company, the Administrative
Agent and each of the Banks;
(ii) A Committed Note executed by the Company, payable to each
Bank;
(iii) A certificate of the Secretary of the Company certifying
(A) copies attached thereto of the resolutions of the Board of Directors of
the Company authorizing and empowering certain officers of the Company to
effect such borrowings as such officers may deem necessary or desirable for
proper corporate purposes, subject to the limitations set forth in such
resolutions, (B) copies attached thereto of the Certificate of
Incorporation and by-laws of the Company, and (C) the names and true
signatures of the officers of the Company authorized to sign this Agreement
and the Notes and other documents to be executed and delivered by the
Company hereunder;
(iv) A certificate of a duly authorized officer of the Company,
dated the Effective Date, certifying that as of such date, (A) the
representations and warranties contained in Section 4.01 are correct on and
as of the Effective Date and (B) no event shall have occurred and be
continuing that constitutes an Event of Default or which would constitute
an Event of Default but for the requirement that notice be given or time
elapse or both; and
(v) A favorable opinion of counsel for the Company,
substantially in the form of Exhibit H hereto.
(b) The Company shall have paid all accrued fees and expenses of the
Arranger, the Administrative Agent and the Banks which are due and payable on
the Effective Date (including, without limitation, the reasonable fees and
expenses of counsel for the Arranger and the Administrative Agent);
(c) There shall have occurred no material adverse change in the
business, financial condition, operations, properties or performance of the
Company and its Subsidiaries, taken as a whole, since December 31, 1999;
(d) There shall exist no action, suit or proceeding (investigative,
judicial or otherwise) against the Company or any of its Subsidiaries pending
before any court or arbitrator
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or any governmental body, agency or official, or to the knowledge of any
Responsible Officer of the Company, threatened, that could reasonably be
expected (i) to have a Material Adverse Effect or (ii) to materially and
adversely affect the legality, validity or enforceability of this Agreement or
any Note;
(e) The representations and warranties contained in Section 4.01
shall be correct on and as of the Effective Date, as though made on and as of
such date; and
(f) No event shall have occurred and be continuing which constitutes
an Event of Default or which would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
For purposes of determining compliance with the conditions specified above,
each Bank shall be deemed to have consented to, approved and accepted, and to be
satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Banks unless
the officer of the Administrative Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Bank prior
to the proposed Effective Date, as notified by the Administrative Agent to the
Banks, specifying its objection thereto. The Administrative Agent shall
promptly notify the Banks of the occurrence of the Effective Date.
SECTION 3.02 Conditions Precedent to Initial Advance to Each Borrowing
Subsidiary. The obligation of each Bank to make its initial Advance hereunder to
any Borrowing Subsidiary is subject to the conditions precedent that the
Effective Date shall have occurred and the Administrative Agent shall have
received on or before the day of the initial Borrowing by such Borrowing
Subsidiary the following, each in form and substance reasonably satisfactory to
the Administrative Agent and in sufficient copies for the Banks:
(a) The Assumption Letter executed and delivered by such Borrowing
Subsidiary and containing the written consent of the Company at the foot
thereof, as contemplated by Section 2.17 hereof;
(b) A Committed Note executed by such Borrowing Subsidiary, payable
to each Bank;
(c) Certified copies of the resolutions of the Board of Directors of
such Borrowing Subsidiary approving the Assumption Letter and all other
documents evidencing corporate action and governmental approvals, if any,
required with respect to the Assumption Letter;
(d) A certificate of the Secretary or an Assistant Secretary of such
Borrowing Subsidiary certifying the names and true signatures of the officers of
such Borrowing Subsidiary authorized to sign the Assumption Letter and the other
documents to be executed and delivered by such Borrowing Subsidiary hereunder;
and
(e) An opinion of counsel to such Borrowing Subsidiary, substantially
in the form of Exhibit I hereto and as to such other matters as the
Administrative Agent shall reasonably request.
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SECTION 3.03 Conditions Precedent to Each Committed Borrowing. The
obligation of each Bank to make a Committed Advance on the occasion of each
Committed Borrowing (including the initial Committed Borrowing) shall be subject
to the further conditions precedent that the Effective Date shall have occurred
and on the date of such Committed Borrowing the following statements shall be
true (and each of the giving of the applicable Notice of Committed Borrowing and
the acceptance by the applicable Borrower of the proceeds of such Committed
Borrowing shall constitute a representation and warranty by such Borrower that
on the date of such Committed Borrowing such statements are true):
(a) The representations and warranties contained in subsections (a),
(b), (c), (d), (e)(i), (f)(ii) and (g) through (o) of Section 4.01 are correct
on and as of the date of such Committed Borrowing, before and after giving
effect to such Committed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date;
(b) No event has occurred and is continuing, or would result from
such Committed Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or which would constitute an Event of
Default but for the requirement that notice be given or time elapse or both; and
(c) The aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted amount)
of indebtedness for borrowed money (after giving effect to such Committed
Borrowing and the application of the proceeds thereof) of the Company and its
Subsidiaries does not exceed the maximum amount then authorized by the Company's
Board of Directors.
SECTION 3.04 Conditions Precedent to Each Uncommitted Borrowing. Each
bidding Bank's obligation to make an Uncommitted Advance as part of an
Uncommitted Borrowing (including the initial Uncommitted Borrowing) is subject
to the conditions precedent that on the date of such Uncommitted Borrowing the
following statements shall be true (and each of the giving of the applicable
Notice of Uncommitted Borrowing and the acceptance by such Borrower of the
proceeds of such Uncommitted Borrowing shall constitute a representation and
warranty by such Borrower that on the date of such Uncommitted Borrowing such
statements are true):
(a) The representations and warranties contained in subsections (a),
(b), (c), (d), (e)(i), (f)(ii) and (g) through (o) of Section 4.01 are correct
on and as of the date of such Uncommitted Borrowing, before and after giving
effect to such Uncommitted Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) No event has occurred and is continuing, or would result from
such Uncommitted Borrowing or from the application of the proceeds therefrom,
which constitutes an Event of Default or which would constitute an Event of
Default but for the requirement that notice be given or time elapse or both, and
(c) The aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted amount)
of indebtedness for borrowed money (after giving effect to the application of
the proceeds of such Uncommitted
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Borrowing) of the Company and its Subsidiaries does not exceed the maximum
amount thereof then authorized by the Company's Board of Directors.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
------------------------------
SECTION 4.01 Representations and Warranties of the Company. The Company
represents and warrants to the Banks as follows:
(a) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction indicated at the
beginning of this Agreement.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, and do not contravene (i) the
Company's certificate of incorporation, as amended, or by-laws or (ii) law or
any contractual restriction binding on or affecting the Company.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
the due execution, delivery and performance by the Company of this Agreement.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the applicable
Borrower. This Agreement is, and each of the Notes when delivered hereunder will
be, a legal, valid and binding obligation of the Company enforceable against the
Company in accordance with their respective terms, subject to any applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally and to general principles of equity.
(e) (i) The consolidated balance sheets of the Company and its
Consolidated Subsidiaries as of December 31, 1999, and the related consolidated
statements of income, cash flow and shareholders' equity of the Company and its
Consolidated Subsidiaries for the fiscal year then ended, copies of which have
been furnished to each Bank, fairly present the financial condition of the
Company and its Consolidated Subsidiaries as at such date and the consolidated
results of the operations of the Company and its Consolidated Subsidiaries for
the period ended on such date, all in accordance with generally accepted
accounting principles.
(ii) Since December 31, 1999, there has been no material adverse
change in the business, financial condition, operations, properties or
performance of the Company and its Subsidiaries, taken as a whole.
(f) There are no actions, suits or proceedings (investigative,
judicial or otherwise) against the Company or any of its Subsidiaries pending
before any court or arbitrator or any governmental body, agency or official, or,
to the knowledge of any Responsible Officer of the Company, threatened, that
could reasonably be expected (i) to have a Material Adverse Effect or (ii) to
materially and adversely affect the legality, validity or enforceability of this
Agreement or any Note.
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<PAGE>
(g) Following application of the proceeds of each Advance to the
Company, not more than 25% of the value of the assets (either of the Company
only or of the Company and its Consolidated Subsidiaries) will be Margin Stock
subject to any restriction contained in any agreement or instrument between the
Company and any Bank or any affiliate of any Bank relating to Debt within the
scope of Section 6.01(e).
(h) The Company is not principally engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
(i) The Advances to each Borrower, and all related obligations of
such Borrower under this Agreement, rank pari passu with all other unsecured
indebtedness for money borrowed or raised by such Borrower that is not, by its
terms, expressly subordinated to other such indebtedness of such Borrower.
(j) No Borrower is an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended.
(k) (i) All necessary Environmental Permits have been obtained and
are in effect for the operations and properties of the Company and its
Subsidiaries, and the Company and its Subsidiaries are in compliance with all
such Environmental Permits, except to the extent that the failure to so obtain
or comply could not reasonably be expected to have a Material Adverse Effect;
and (ii) no circumstances exist that could reasonably be expected to (A) form
the basis of an Environmental Action against the Company or any of its
Subsidiaries or any of their properties that could reasonably be expected to
have a Material Adverse Effect or (B) cause any such property to be subject to
any restrictions on ownership, occupancy, use or transferability under any
Environmental Law that could reasonably be expected to have a Material Adverse
Effect.
(l) None of the properties owned or leased by the Company or any of
its Subsidiaries is the subject of any investigation or cleanup, whether
voluntary or required pursuant to any Environmental Law or ordered by any
governmental authority, that could reasonably be expected to have a Material
Adverse Effect.
(m) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
(n) Neither the Company nor any of its ERISA Affiliates (i) has
incurred or is reasonably expected to incur any Withdrawal Liability with
respect to any Multiemployer Plan or (ii) has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no such Multiemployer
Plan is reasonably expected to be in reorganization or to be terminated, within
the meaning of Title IV of ERISA.
(o) As of the last annual actuarial valuation date, the aggregate
current liability (as defined in Section 412 of the Internal Revenue Code) under
the Plans does not exceed the aggregate fair market value of the assets of such
Plans by more than $50,000,000.
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ARTICLE V
COVENANTS OF THE COMPANY
------------------------
So long as any Advance shall remain unpaid or any Bank shall have any
Commitment hereunder, unless the Majority Banks shall otherwise consent in
writing:
SECTION 5.01 Compliance with Laws, Etc. The Company will comply, and cause
each of its Subsidiaries to comply, in all material respects with all applicable
laws, rules, regulations and orders, except for laws, rules, regulations and
orders the violation of which, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.02 Interest Coverage Ratio. The Company will, as of the end of
each fiscal quarter after the Effective Date, maintain an Interest Coverage
Ratio of not less than 2.0 to 1.
SECTION 5.03 Reporting Requirements. The Company will furnish to the
Banks:
(a) within 60 days after the end of each of the first three quarters
of each fiscal year of the Company, but in no case earlier than when such report
shall be required to be filed with the Commission, a copy of the Company's Form
10-Q filed with the Commission for such quarter, or any similar quarterly report
required to be filed by the Company with the Commission; provided that if the
Company shall no longer be required to so file with the Commission, the Company
will nonetheless thereafter continue to furnish to the Banks such financial
statements and related materials as would have comprised such filings, at such
times as the Company would have otherwise delivered the same to the Commission;
(b) within 120 days after the end of each fiscal year of the Company,
but in no case earlier than when such report shall be required to be filed with
the Commission, a copy of the Company's Form 10-K filed with the Commission for
such year, or any similar annual report required to be filed by the Company with
the Commission; provided that if the Company shall no longer be required to so
file with the Commission, the Company will nonetheless thereafter continue to
furnish to the Banks such financial statements and related materials as would
have comprised such filings, at such times as the Company would have otherwise
delivered the same to the Commission;
(c) simultaneously with the delivery of the reports referred to in
clauses (a) and (b) above, a certificate of a designated financial officer of
the Company (i) setting forth in reasonable detail the calculations required to
establish whether the Company was in compliance with the requirements of Section
5.02 on the date of such financial statements and (ii) stating whether there
exists on the date of such certificate any Event of Default or condition or
event which with notice or lapse of time or both would become an Event of
Default and, if any Event of Default or any such condition or event then exists,
setting forth the details thereof and the action which the Company is taking
with respect thereto;
(d) promptly after the sending or filing thereof, copies of all
reports which the Company sends to any of its security holders, and copies of
all reports and registration
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statements (other than Form S-8 or any similar form) which the Company or any
Borrowing Subsidiary files with the Commission or any national securities
exchange;
(e) promptly following any Responsible Officer's knowledge thereof,
notice in writing of (i) the occurrence of any Event of Default or condition or
event which with notice or lapse of time or both would become an Event of
Default and, if any Event of Default or any such condition or event then exists,
setting forth the details thereof and the action which the Company is taking
with respect thereto, or (ii) the institution of, or any adverse final judgment
in, any litigation, arbitration proceeding or governmental proceeding which, in
the Company's judgment, if adversely determined, could reasonably be expected to
have a Material Adverse Effect; and
(f) such other pertinent information as any Bank may reasonably
request.
SECTION 5.04 Use of Proceeds. The Borrowers will use the proceeds of the
Advances made under this Agreement only for general corporate purposes otherwise
permitted under this Agreement, including, without limitation, mergers and
acquisitions, the purchase of stock of other Persons, the repurchase of shares
of capital stock of the Company, the repayment of indebtedness, the funding of
employee benefit plans of the Company or its Subsidiaries and for other lawful
purposes; provided that, no Borrower shall use the proceeds of any Advances made
hereunder to acquire 20% or more of the outstanding shares of the capital stock
of any Person unless (a) at the time of such acquisition, such Person shall have
consented to such acquisition either by having entered into an agreement with
the Company or a subsidiary of the Company contemplating a merger of such Person
with or into the Company or such subsidiary or by its Board of Directors having
authorized, approved or consented to such acquisition, or (b) such Borrower
shall have obtained the prior written consent with respect thereto of (i) in the
case of any Committed Borrowing the proceeds of which shall be used to
facilitate such acquisition, the Banks and (ii) in the case of any Uncommitted
Borrowing the proceeds of which shall be used to facilitate such acquisition,
the Banks extending Uncommitted Advances in connection therewith; provided
further that if the applicable Borrower shall have specified the intended use of
proceeds of an Uncommitted Borrowing in the Notice of Uncommitted Borrowing with
respect thereto, each Bank electing to offer to make one or more Uncommitted
Advances in response thereto shall be deemed to have provided the written
consent required under this Section 5.04 for such use of the proceeds of such
Uncommitted Advances.
SECTION 5.05 Limitation on Liens, Etc. The Company will not create or
suffer to exist, or permit any of its Consolidated Subsidiaries to create or
suffer to exist, any Lien, upon or with respect to any of its properties (other
than Margin Stock), whether now owned or hereafter acquired, or assign, or
permit any of its Consolidated Subsidiaries to assign, any right to receive
income, in each case to secure any Debt of any Person or entity, other than:
(a) Liens arising in connection with the obligations of the Company
or any Subsidiary under industrial revenue bonds;
(b) Liens on assets of a Subsidiary of a Borrower to secure Debt of
such Subsidiary to any Borrower;
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(c) Purchase money Liens claimed by sellers of goods on ordinary
trade terms provided that no financing statement has been filed to perfect such
Liens, and provided that no such Lien shall extend to assets of any character
other than the goods being acquired;
(d) Liens securing Debt existing as of December 31, 1997;
(e) Liens securing Debt on property of a corporation or firm (or
division thereof) that becomes a Subsidiary of the Company or of any of its
Subsidiaries after the date hereof in accordance with Section 5.06 and existing
at the time such corporation is merged or consolidated with the Company or any
Subsidiary, at the time such corporation or firm (or division thereof) becomes a
Subsidiary of the Company or any of its Subsidiaries, or at the time of a sale,
lease or other disposition of the properties of a corporation or a firm (or
division thereof) as an entirety or substantially as an entirety to the Company
or a Subsidiary, provided that such Liens were not created in contemplation of
such merger, consolidation, acquisition, sale, lease or disposition and do not
extend to assets other than those of the Person merged into or consolidated with
the Company or such Subsidiary or acquired by the Company or such Subsidiary;
(f) Liens on life insurance policies owned by the Company or any
Subsidiary, securing Insurance Policy Debt;
(g) Purchase money Liens constituting the interest of a lessor under
a lease that would be capitalized on the lessee's balance sheet in accordance
with GAAP, or under a sale-leaseback transaction, in each case relating to
equipment, provided that after giving effect thereto, no Event of Default under
Section 5.02 shall exist;
(h) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Liens referred to in the
foregoing subsections (a) through (g); provided that, in the case of Liens
referred to in the foregoing subsections (c), (d), (e), (f) and (g), the
principal amount of Debt secured thereby shall not exceed the principal amount
of Debt so secured at the time of such extension, renewal or replacement, and
that such extension, renewal or replacement Lien shall be limited to all or a
part of the property which is subject to the Lien so extended, renewed or
replaced (plus improvements on such property); and
(i) Additional Liens securing Debt other than as may be included in
the foregoing subsections (a) through (h), provided, that the aggregate
outstanding principal amount of such Debt shall not at any time exceed 10% of
Consolidated Tangible Net Worth at such time.
SECTION 5.06 Merger; Sale of Assets. The Company will not, and will not
permit its Material Subsidiaries to, merge or consolidate with or into any other
Person, or sell, transfer, lease or otherwise dispose of all or substantially
all of its assets (whether now owned or hereafter required), except that:
(a) the Company or a Material Subsidiary may acquire another
corporation by merger, provided that, if the Company is a party to such merger,
the Company is the surviving corporation, and provided further that after giving
effect to such merger, no Event of Default (or
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<PAGE>
event which, with the giving of notice or the passing of time or both would
constitute an Event of Default) shall exist; and
(b) any Material Subsidiary may merge or consolidate with or into, or
sell or otherwise dispose of any or all of its assets to, the Company or another
Subsidiary, and any Material Subsidiary that is not a Borrowing Subsidiary may
sell all or substantially all of its assets; provided that (a) after giving
effect to such merger, consolidation, sale or other disposition, no Event of
Default (or any event which, with the giving of notice or the passing of time or
both would constitute an Event of Default) shall exist, and (b) in the case of
an asset sale by such a Material Subsidiary, the assets to be sold do not
constitute all or substantially all of the assets of the Company and its
Subsidiaries, taken as a whole.
SECTION 5.07 Books and Records; Inspection. The Company will, and will
cause each of its Subsidiaries to, (a) maintain complete and accurate books and
records, in which full and correct entries shall be made of all financial
transactions of the Company and each such Subsidiary in accordance with
generally accepted accounting principles, and (b) permit any Bank, the
Administrative Agent and their respective employees and agents, at such
reasonable times during normal business hours and as often as may be reasonably
requested, to inspect any of the properties of the Company or any of its
Subsidiaries and to inspect and make copies of the material books and records of
the Company and its Subsidiaries and to discuss the affairs and finances of the
Company and its Subsidiaries with their officers; provided that such Bank or the
Administrative Agent shall have delivered a written request for such inspection
to the Company prior to the date of any such inspection.
SECTION 5.08 Corporate Existence. Subject to the Company's rights under
Section 5.06, the Company will, and will cause each of its Material Subsidiaries
to, at all times maintain its corporate existence and preserve and keep, or
cause to be preserved and kept, in full force and effect its rights and
franchises material to its businesses.
SECTION 5.09 Conduct of Business. The Company shall not, and shall not
permit any Material Subsidiary to, engage in any line of business other than (A)
the businesses engaged in by the Company and its Subsidiaries on the date hereof
and (B) any business or activities substantially similar or related thereto
(which shall include, without limitation, other businesses related to the
handling and/or distribution of data used or processed in the businesses engaged
in by the Company and its Subsidiaries on the date hereof).
SECTION 5.10 Payment of Taxes. The Company will pay and discharge, and
cause each of its Material Subsidiaries to pay and discharge, before the same
shall become delinquent, all material taxes, assessments and governmental
charges or levies imposed upon it or its property; provided, however, that
neither the Company nor any of its Material Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or levy that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained in accordance with GAAP, as long as no action has
been commenced to enforce any Lien securing any such tax, assessment, charge or
levy.
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ARTICLE VI
EVENTS OF DEFAULT
-----------------
SECTION 6.01 Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) A Borrower shall fail to pay when due any installment of
principal of any Advance; or
(b) A Borrower shall fail to pay any fee under this Agreement, or any
installment of interest on any Advance, within ten (10) days after the due date
thereof; or
(c) Any written representation or warranty made by a Borrower herein
or in connection with this Agreement shall prove to have been incorrect in any
material respect when made; or
(d) The Company shall fail to perform or observe (i) any term,
covenant or agreement contained in Section 5.02, 5.03(a), (b) or (e), 5.04,
5.05, 5.06, 5.07, 5.08, 5.09 or 5.10, or (ii) any other term, covenant or
agreement contained in this Agreement, other than in (a) or (b) above, on its
part to be performed or observed if such failure shall remain unremedied for 30
days after written notice thereof shall have been given to the Company by the
Majority Banks through the Administrative Agent; or
(e) The Company or any Material Subsidiary shall fail to pay any
principal of or premium or interest on any Debt, or any obligations in respect
of acceptances, letters of credit or other similar instruments, of the Company
or such Material Subsidiary which is outstanding in a principal amount of at
least $50,000,000 in the aggregate (but excluding Debt arising under this
Agreement), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt or other obligation; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt or other obligation and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or permit
the acceleration of, the maturity of such Debt or other obligation; or any Debt
or other such obligation in which the outstanding principal exceeds $50,000,000
shall be otherwise declared to be due and payable (by acceleration or otherwise)
or required to be prepaid, redeemed, defeased or otherwise repurchased by the
Company or any Material Subsidiary (other than by a regularly-scheduled required
prepayment), or any offer to prepay, redeem, defease or purchase such Debt shall
be required to be made, prior to the stated maturity thereof; or
(f) The Company or any Material Subsidiary shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Company or
any Material Subsidiary seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or
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composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, or other similar official for
it or for any substantial part of its property, and in the event of any such
proceeding instituted against the Company or any Material Subsidiary (but not
instituted by it), such proceeding shall remain undismissed or unstayed for a
period of 60 days or shall result in the entry of an order for relief, the
appointment of a trustee or receiver, or other action in such proceeding or
result adverse to the Company or such Material Subsidiary, as applicable, or the
Company or any Material Subsidiary shall take any corporate action to authorize
any of the actions set forth above in this subsection (f); or
(g) Any Person, or a group of Persons acting in concert, shall at any
time acquire, directly or indirectly, in excess of 51% of the securities having
ordinary voting power to elect members of the board of directors of the Company;
or
(h) The Company shall incur liability in excess of $50,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence of any
ERISA Event; (ii) the partial or complete withdrawal of the Company or any of
its ERISA Affiliates from a Multiemployer Plan; or (iii) the reorganization or
termination of a Multiemployer Plan; or
(i) One or more final judgments or orders for the payment of money,
in an aggregate amount exceeding $50,000,000 at any one time outstanding
(exclusive of judgment amounts fully covered by insurance, to the extent the
insurer has admitted liability in respect thereof), shall be rendered against
the Company or any Material Subsidiary and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order, or (ii)
such judgments or orders shall not be discharged (or provision shall not have
been made for such discharge), a stay of execution thereof shall not be
obtained, or such judgments or orders shall not be paid or bonded, within 60
days from the date of entry thereof, and the Company or such Material
Subsidiary, as the case may be, shall not, within such 60-day period, appeal
therefrom and cause the execution thereof to be stayed pending such appeal;
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Majority Banks, by notice to the Company, (i)
declare the obligation of each Bank to make Advances to any Borrower to be
terminated, whereupon the same shall forthwith terminate, and (ii) declare the
Notes, all interest thereon and all other amounts payable under this Agreement
to be forthwith due and payable, whereupon the Notes, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Company; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Company under the
Federal Bankruptcy Code, (A) the obligation of each Bank to make Advances to any
Borrower shall automatically be terminated and (B) the Notes, all such interest
and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Company.
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ARTICLE VII
GUARANTEE
---------
SECTION 7.01 Unconditional Guarantee. For valuable consideration, receipt
whereof is hereby acknowledged, and to induce the Banks to make Advances to each
Borrowing Subsidiary, the Company unconditionally guarantees to the Banks and
the Administrative Agent that the principal of and interest on each Advance and
all other amounts payable by each Borrowing Subsidiary hereunder shall be
promptly paid in full when due (whether at stated maturity, by acceleration or
otherwise) in accordance with the terms hereof and thereof, and, in the case of
any extension of time of payment, in whole or in part, that all such amounts
shall be promptly paid when due (whether at stated maturity, by acceleration or
otherwise) in accordance with the terms of such extension. In addition, the
Company unconditionally agrees that upon default in the payment when due
(whether at stated maturity, by acceleration or otherwise) of any of such
principal, interest or other amounts, the Company shall forthwith pay the same.
Without limiting the generality of the foregoing, the Company's liability shall
extend to all amounts that constitute part of the obligations of any Borrowing
Subsidiary guaranteed by the Company under this Article VII and would be owed by
any such Borrowing Subsidiary to any Bank or the Administrative Agent under this
Agreement or the Notes but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving such Borrowing Subsidiary.
SECTION 7.02 Validity. The obligations of the Company under this Article
VII are independent of the obligations of the Borrowing Subsidiaries guaranteed
hereunder, and a separate action or actions may be brought and prosecuted
against the Company to enforce its obligations under this Article VII,
irrespective of whether any action is brought against any Borrowing Subsidiary
or whether any Borrowing Subsidiary is joined in any such action or actions. The
obligations of the Company under this Article VII shall be unconditional
irrespective of (i) the genuineness, validity, regularity or enforceability of
the obligations of the Borrowing Subsidiaries under this Agreement, any Note or
any Assumption Letter, (ii) any law, regulation or order of any jurisdiction
affecting any term of any obligation of any Borrowing Subsidiary under this
Agreement or the rights of any Bank or the Administrative Agent with respect
thereto, (iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of any Borrowing Subsidiary
guaranteed by the Company under this Article VII, or any other amendment or
waiver of or any consent to departure from this Agreement or the Notes, (iv) any
change, restructuring or termination of the corporate structure or existence of
any Borrowing Subsidiary or any of its Subsidiaries, or (v) to the fullest
extent permitted by applicable law, any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety or guarantor.
SECTION 7.03 Waivers. The Company expressly waives promptness, diligence,
presentment, protest and any other notice with respect to the obligations of the
Company under this Article VII and any requirement that any right or power be
exhausted or any action be taken against any Borrowing Subsidiary and all
notices and demands whatsoever.
SECTION 7.04 Subrogation. The Company shall be subrogated to the rights of
the Banks or the Administrative Agent against any Borrowing Subsidiary hereunder
only after the
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Banks and the Administrative Agent shall have been paid in full all such
amounts, with interest thereon, for which such Borrowing Subsidiary shall have
become indebted hereunder.
SECTION 7.05 Acceleration. The Company agrees that, as between the Company
on the one hand, and the Banks and the Administrative Agent, on the other hand,
the obligations of each Borrowing Subsidiary guaranteed under this Article VII
may be declared to be forthwith due and payable, or may be deemed automatically
to have been accelerated, as provided in Section 6.01 hereof for purposes of
this Article VII, notwithstanding any stay, injunction or other prohibition
(whether in a bankruptcy proceeding affecting such Borrowing Subsidiary or
otherwise) preventing such declaration as against such Borrowing Subsidiary and
that, in the event of such declaration or automatic acceleration, such
obligations (whether or not due and payable by such Borrowing Subsidiary) shall
forthwith become due and payable by the Company for purposes of this Article
VII.
SECTION 7.06 Reinstatement. The Company's obligations under this Article
VII shall be reinstated if at any time any payment received by any Bank or the
Administrative Agent from any Borrowing Subsidiary hereunder is required to be
repaid or returned by such Bank or the Administrative Agent, all as though such
payment had not been made.
SECTION 7.07 Continuing Guaranty; Assignments. This guarantee of the
Company shall (a) remain in full force and effect until the later of (i) the
cash payment in full of the obligation of any Borrowing Subsidiary guaranteed by
the Company under this Article VII and (ii) the Termination Date (or, if the
Company has made the Term Loan Election, the Maturity Date), (b) be binding upon
the Company, its successors and assigns and (c) inure to the benefit of, and be
enforceable by, the Banks and the Administrative Agent and their successors,
transferees and assigns (provided that the applicable transfers and assignments
are made in accordance with the terms of this Agreement).
ARTICLE VIII
ADMINISTRATIVE AGENT; SYNDICATION AGENT;
----------------------------------------
DOCUMENTATION AGENT; CO-AGENTS
------------------------------
SECTION 8.01 Authorization and Action. Each Bank appoints and authorizes
Bank One to act as the Administrative Agent hereunder, and each Bank irrevocably
authorizes the Administrative Agent (for so long as the Administrative Agent
remains in such capacity under this Agreement) to act as the contractual
representative of such Bank with only the rights and duties expressly set forth
herein. The Administrative Agent agrees to act as such contractual
representative upon the express conditions contained in this Article VIII.
Notwithstanding the use of the defined term "Administrative Agent," it is
expressly understood and agreed that the Administrative Agent shall not have any
fiduciary responsibilities to any Bank by reason of this Agreement and that the
Administrative Agent is merely acting as the representative of the Banks with
only those duties as are expressly set forth in this Agreement. In its capacity
as the Banks' contractual representative, the Administrative Agent (i) does not
assume any fiduciary duties to any of the Banks, (ii) is a "representative" of
the Lenders within the meaning of Section 9-105 of the Uniform Commercial Code
and (iii) is acting as an independent contractor, the rights and duties of which
are limited to those expressly set forth in this Agreement. Each Bank agrees to
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assert no claim against the Administrative Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of which claims each
Bank waives. The Administrative Agent shall have and may exercise such powers
under this Agreement as are specifically delegated to the Administrative Agent
by the terms hereof, together with such powers as are reasonably incidental
hereto. The Administrative Agent shall have no implied duties to the Banks, or
any obligation to the Banks to take any action hereunder, except any action
specifically provided by this Agreement to be taken by the Administrative Agent.
As to any matters not expressly provided for by this Agreement (including,
without limitation, enforcement or collection of the Notes), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Majority
Banks, and such instructions shall be binding upon all Banks and all holders of
the Notes; provided, however, that the Administrative Agent shall not be
required to take any action which exposes the Administrative Agent to personal
liability or which is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Bank prompt notice of each notice
given to it by any Borrower pursuant to the terms of this Agreement. The
Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other instrument, document or agreement executed in
connection herewith by or through employees, agents, and attorney-in-fact and
shall not be answerable to the Banks, except as to money or securities received
by it or its authorized agents, for the default or misconduct of any such agents
or attorneys-in-fact selected by it with reasonable care. Without limiting the
foregoing, the Administrative Agent may appoint any Affiliate as its agent for
all matters relating to Advances made in Alternative Currencies. Each such agent
shall be entitled to all of the rights and benefits granted to the
Administrative Agent hereunder, and each Bank shall treat any notice given by
any such agent as if it had been given directly by the Administrative Agent.
SECTION 8.02 Administrative Agent's Reliance, Etc. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Bank that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 9.07;
(ii) may consult with legal counsel (including counsel for any Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Bank and shall not be responsible to any
Bank for any statements, warranties or representations (whether written or oral)
made in or in connection with this Agreement; (iv) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement on the part of any Borrower or to
inspect the property (including the books and records) of any Borrower; (v)
shall not be responsible to any Bank for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (vi) shall not have any duty
to ascertain, inquire into or verify the financial condition of the Company or
any of its Subsidiaries; (vii) shall have no duty to disclose to the Banks
information that is not required to be furnished by the Company to the
Administrative Agent at such time, but is voluntarily furnished by the
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Company to the Administrative Agent (either in its capacity as Administrative
Agent or in its individual capacity); and (viii) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram) believed by it to be
genuine and signed or sent by the proper party or parties. The Administrative
Agent shall be entitled to advice of counsel concerning the contractual
arrangement between the Administrative Agent and the Banks and all matters
pertaining to the Administrative Agent's duties hereunder.
SECTION 8.03 The Administrative Agent and Affiliates. With respect to any
financial institution which shall become the Administrative Agent hereunder, and
with respect to such financial institution's Commitment and the Advances made by
it, such financial institution shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not the
Administrative Agent; and the term "Bank" or "Banks" shall, unless otherwise
expressly indicated, include such financial institution in its individual
capacity, if applicable. Each such financial institution and its affiliates may
accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, any Borrower, any of their
respective Subsidiaries and any Person who may do business with or own
securities of any Borrower or any such Subsidiary, all as if such financial
institution were not the Administrative Agent and without any duty to account
therefor to the Banks.
SECTION 8.04 Bank Credit Decision; Notice of Default. Each Bank
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Bank and based on the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default, or an event which would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both, unless the Agent has received written notice from a Bank or
the Company referring to this Agreement describing such Event of Default, or
such event which would constitute an Event of Default but for the requirement
that notice be given or time elapse or both, and stating that such notice is a
"notice of default". In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give prompt notice thereof to the Banks.
SECTION 8.05 Indemnification. The Banks (other than the Designated
Bidders) agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrowers), ratably according to the respective principal
amounts of the Notes held by each of them (or, if no Notes are outstanding at
the time or if any Notes are held by Persons that are not Banks, ratably
according to the respective amounts of their Commitments) from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by the Administrative Agent under this Agreement;
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent any of the foregoing is
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found in a final non-appealable judgment by a court of competent jurisdiction to
have resulted from the Administrative Agent's gross negligence or willful
misconduct. Without limiting the foregoing, each Bank (other than the Designated
Bidders) agrees to reimburse the Administrative Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by the Administrative Agent in connection with the administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrowers. The obligation of
the Banks under this Section 8.05 shall survive payment of the Obligations and
the termination of this Agreement.
SECTION 8.06 Successor Administrative Agent. The Administrative Agent may
resign at any time by giving written notice thereof to the Banks and the Company
and may be removed at any time with or without cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the right to
appoint another Bank as successor Administrative Agent or, if acceptable to the
Company, any other commercial bank organized under the laws of the United States
of America or of any State thereof and having a combined capital and surplus of
at least $500,000,000. If no successor Administrative Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent gives notice of
resignation or the Majority Banks remove the retiring Administrative Agent, then
the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having a
combined capital and surplus of at least $500,000,000 and otherwise acceptable
to the Company. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon 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 under
this Agreement. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article VIII shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent.
SECTION 8.07 Syndication Agent; Documentation Agent; Co-Agents. The Banks
identified in this Agreement as the Syndication Agent, the Documentation Agent
or Co-Agents shall not have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Banks as such. Without limiting the foregoing, such Banks shall not have or be
deemed to have a fiduciary relationship with any Bank. Each Bank hereby makes
the same acknowledgments with respect to such Banks as it makes with respect to
the Administrative Agent in Section 8.04.
ARTICLE IX
MISCELLANEOUS
-------------
SECTION 9.01 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor any consent to any departure by any Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Banks,
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and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Banks (other than the Designated Bidders), directly do any of the following: (i)
waive any of the conditions specified in Section 3.01 or 5.04, (ii) increase the
Commitments of the Banks or subject the Banks to any additional obligations,
(iii) reduce the principal of, or the stated rate at which interest accrues on,
the Notes or reduce the stated rate at which the Facility Fee and the
Utilization Fee are calculated, (iv) postpone any date fixed for any payment of
principal of, or interest on, the Committed Advances or any fees or other
amounts payable hereunder, (v) change the percentage of the Commitments, or of
the aggregate unpaid principal amount of the Notes, or the number of Banks which
shall be required for the Banks or any of them to take any action hereunder or
(vi) amend this Section 9.01; provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Banks required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or any Note.
SECTION 9.02 Notices, Etc. (a) All notices and other communications
provided for hereunder shall be in writing (including telegraphic or telecopy
communication) and mailed, telegraphed, telecopied or delivered,
(i) if to the Company, at its address at 77 West Wacker Drive,
Chicago, Illinois 60601 Attention: Treasurer, telecopy number
(312) 326-8557;
(ii) if to any Borrowing Subsidiary, at the address specified in
the Assumption Letter pursuant to which it became a Borrowing Subsidiary,
with a copy to the Company at the address specified herein; provided that
any such notice may be given solely to the Company, at the option of the
party giving such notice;
(iii) if to any bank listed on the signature pages hereof, at
its Domestic Lending Office specified opposite its name on Schedule I
hereto;
(iv) if to any other Bank, at its Domestic Lending Office
specified in the Assignment and Acceptance or Designation Agreement
pursuant to which it became a Bank;
(v) if to the Administrative Agent, at the Domestic Lending
Office specified opposite its name on Schedule I hereto;
or as to the Borrowers and the Administrative Agent, at such other address as
shall be designated by such party in a written notice to the other parties, and
as to each such other party, at such other address as shall be designated by
such party in a written notice to the Company and the Administrative Agent. All
such notices and communications shall, when sent by overnight courier, mailed or
telecopied, be effective when delivered to such courier, deposited in the mails,
or telecopied and confirmed by return telecopy, respectively, except that
notices and communications to the Administrative Agent pursuant to Articles II,
III and VIII shall not be effective until received by the Administrative Agent.
(b) If any notice required under this Agreement is permitted to be
made, and is made, by telephone, actions taken or omitted to be taken in
reliance thereon by the
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Administrative Agent or by any Bank shall be binding upon the Company and each
other Borrower notwithstanding any inconsistency between the notice provided by
telephone and any subsequent writing in confirmation thereof provided to the
Administrative Agent or such Bank; provided that any such action taken or
omitted to be taken by the Administrative Agent or such Bank shall have been in
good faith and in accordance with the terms of this Agreement.
SECTION 9.03 No Waiver; Remedies. No failure on the part of any Bank or
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04 Costs and Expenses. (a) The Company agrees to pay on demand
all reasonable, documented out-of-pocket costs and expenses of the Arranger and
the Administrative Agent (including, without limitation, reasonable fees and
expenses of counsel), in connection with any amendments, modifications or
waivers of the provisions hereof, or in determining the rights and obligations
of the parties hereto under this Agreement and the Notes, or the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Agreement
and the other documents to be delivered hereunder; provided that if, in the
event of any enforcement undertaken by the Banks hereunder, it shall be
determined that sufficient conflicts exist such that a single law firm engaged
by the Administrative Agent or the Majority Banks is precluded by law or by
standards of conduct from representing the Banks as a group, and such conflicts
would exist with respect to any other law firm representing the Banks as a
group, the Company agrees to pay on demand all reasonable, documented out-of-
pocket costs and expenses of each Bank, if any (including, without limitation,
reasonable fees and expenses of counsel), in connection with such enforcement
undertaking.
(b) The Company agrees to pay to the Administrative Agent such fees
as shall have been agreed to by the Administrative Agent and the Company in a
separate agreement regarding the provision by the Administrative Agent of
services as Administrative Agent under this Agreement.
SECTION 9.05 Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the declaration that the Advances
are due and payable pursuant to the provisions of Section 6.01, each Bank is
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 Bank to or for the credit or the account of any Borrower
against any and all of the obligations of such Borrower now or hereafter
existing under this Agreement and the Notes held by such Bank, irrespective of
whether or not such Bank shall have made any demand under this Agreement or such
Notes and although such obligations may be unmatured. Each Bank shall promptly
notify the Company after any such set-off and application made by such Bank,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Bank may have.
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SECTION 9.06 Binding Effect. This Agreement (other than Sections 2.01 and
2.03, which shall only become effective upon satisfaction of the conditions set
forth in Section 3.01) shall become effective when it shall have been executed
by the Company and the Administrative Agent and when the Administrative Agent
shall have been notified by each bank listed on the signature pages hereof that
it has executed this Agreement and thereafter shall be binding upon and inure to
the benefit of the Company, the Administrative Agent and each Bank and their
respective successors and assigns, except that neither the Company nor any
Borrowing Subsidiary shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Banks.
SECTION 9.07 Assignments, Designations and Participations. (a) Each Bank
(other than the Designated Bidders) may, upon obtaining the prior written
consent of the Company and the Administrative Agent (which consents shall not be
unreasonably withheld or delayed), and each Bank (including, without limitation,
the Designated Bidders) shall, if demanded by the Company in accordance with
Section 2.05(b), assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment and the Committed Advances owing to it and
the Committed Notes held by it); provided, however, that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all rights and obligations under this Agreement
(other than any right to make Uncommitted Advances, Uncommitted Advances
owing to it and Uncommitted Notes owing to it);
(ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Bank or an assignment of all of
a Bank's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $20,000,000 (or
an integral multiple of $1,000,000 in excess thereof);
(iii) each such assignment made as a result of a demand by the
Company pursuant to Section 2.05(b) and this Section 9.07(a) shall be
arranged by the Company with the approval of the Administrative Agent,
which approval shall not be unreasonably withheld or delayed, and shall be
either an assignment of all of the rights and obligations of the assigning
Bank under this Agreement or an assignment of a portion of such rights and
obligations made concurrently with another such assignment or other such
assignments that, in the aggregate, cover all of the rights and obligations
of the assigning Bank under this Agreement;
(iv) no Bank shall be obligated to make any such assignment as a
result of a demand by the Company pursuant to this Section 9.07(a) unless
and until such Bank shall have received one or more payments from one or
more Eligible Assignees in an aggregate amount equal to the aggregate
outstanding principal amount of the Advances owing to such Bank, together
with accrued interest thereon to the date of payment of such principal
amount and from the Company or one or more Eligible Assignees in an
aggregate amount equal to all other amounts payable to such Bank under this
Agreement
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and the Notes (including, without limitation, any amounts owing under
Sections 2.12, 2.13 or 2.18); and
(v) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance, together with any Note subject
to such assignment and a processing and recordation fee of $3,500;
and provided, further, that the consent of the Company and the Administrative
Agent shall not be required with respect to an assignment to an Eligible
Assignee which is a Bank or an Affiliate thereof. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Bank hereunder and (y) the Bank assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto). Notwithstanding the foregoing, each Bank may, without the Company's or
the Administrative Agent's consent, assign all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Advances owing to it) to an affiliate of such
Bank or to another Bank.
(b) By executing and delivering an Assignment and Acceptance, the
Bank assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Company or any
Borrowing Subsidiary or the performance or observance by the Company or any
Borrowing Subsidiary of any of their respective obligations under this Agreement
or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the Administrative Agent,
such assigning Bank or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Administrative Agent to take such action as contractual
representative on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Administrative Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement are required to
be performed by it as a Bank.
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(c) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an assignee representing that it is an Eligible Assignee, and
consented to by the Company, together with any Note or Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of Exhibit A hereto, (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company.
Within ten Business Days after its receipt of such notice, the Company shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note a new Note to the order of such Eligible Assignee in an amount equal to the
Commitment assumed by it (in the case of a Committed Note) or the Uncommitted
Advance or part thereof purchased by it (in the case of an Uncommitted Note)
pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained a Commitment or a part of such Uncommitted Advance hereunder, a new
Note to the order of the assigning Bank in an amount equal to the Commitment or
of such Uncommitted Advance retained by it hereunder. Such new Note or Notes
shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit D-1 or Exhibit D-2 hereto (as the case may be).
(d) Each Bank (other than the Designated Bidders) may, upon obtaining
the prior written consent of the Company and the Administrative Agent (which
consents shall not be unreasonably withheld or delayed), designate one or more
banks or other entities to have a right to make Uncommitted Advances as a Bank
pursuant to Section 2.03; provided, however, that (i) no such Bank shall be
entitled to make more than one such designation, (ii) each such Bank making such
a designation shall retain the right to make Uncommitted Advances as a Bank
pursuant to Section 2.03, (iii) each such designation shall be to a Designated
Bidder and (iv) the parties to each such designation shall execute and deliver a
Designation Agreement to the Administrative Agent, for its acceptance and
recording in the Register, together with the consent thereto executed by the
Company. Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Designation Agreement, the designee
thereunder shall be a party hereto with a right to make Uncommitted Advances as
a Bank pursuant to Section 2.03 and the obligations related thereto.
(e) By executing and delivering a Designation Agreement, the Bank
making the designation thereunder and its designee thereunder confirm and agree
with each other and the other parties hereto as follows: (i) such Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such Bank makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Company or any Borrowing Subsidiary or the performance or observance by the
Company or any Borrowing Subsidiary of any of their respective obligations under
this Agreement or any other instrument or document furnished pursuant hereto;
(iii) such designee confirms that it has received a copy of this Agreement,
together with copies of the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Designation Agreement; (iv)
such designee will, independently and without reliance upon the Administrative
Agent, such designating Bank or any other Bank and
-57-
<PAGE>
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such designee confirms that it is a Designated Bidder;
(vi) such designee appoints and authorizes the Administrative Agent to take such
action as contractual representative on its behalf and to exercise such powers
and discretion under this Agreement as are delegated to the Administrative Agent
by the terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such designee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(f) Upon its receipt of a Designation Agreement executed by a
designating Bank and a designee representing that it is a Designated Bidder, and
consented to by the Company, the Administrative Agent shall, if such Designation
Agreement has been completed and is substantially in the form of Exhibit C
hereto, (i) accept such Designation Agreement, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Company.
(g) The Administrative Agent shall maintain at its address referred
to in Section 9.02 a copy of each Assignment and Acceptance and each Designation
Agreement delivered to and accepted by it and a register for the recordation of
the names and addresses of the Banks and, with respect to Banks other than
Designated Bidders, the Commitment of, and principal amount of the Advances
owing to, each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the Company, the Administrative Agent and the Banks may treat each
Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Company or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(h) Each Bank (other than a Designated Bidder) may sell
participations to one or more banks or other entities in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) such Bank's obligations
under this Agreement (including, without limitation, its Commitment hereunder)
shall remain unchanged, (ii) such Bank shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Bank
shall remain the holder of any such Note for all purposes of this Agreement,
(iv) the Company, the Administrative Agent and the other Banks shall continue to
deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by the
Company or any Borrowing Subsidiary therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of the Notes or the
stated rate at which interest, the Facility Fee or the Utilization Fee is
calculated, in each case to the extent subject to such participation, or
postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation.
-58-
<PAGE>
(i) Any Bank may, in connection with any assignment, designation or
participation or proposed assignment, designation or participation pursuant to
this Section 9.07, disclose to the assignee, designee or participant or proposed
assignee, designee or participant, any information relating to the Company or
any other Borrower furnished to such Bank by or on behalf of the Company or such
other Borrower; provided that, prior to any such disclosure of non-public
information, such Bank shall have obtained the Company's consent and the
assignee or participant or proposed assignee or participant shall agree in a
manner satisfactory to the Company to preserve the confidentiality of any
confidential information relating to the Company received by it from such Bank.
(j) Notwithstanding any other provision set forth in this Agreement,
any Bank may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 9.08 Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of Illinois.
SECTION 9.09 Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 9.10 Confidentiality. Each Bank agrees that it will use reasonable
efforts to keep confidential any information from time to time supplied to it by
the Company which the Company designates in writing at the time of its delivery
to the Bank is to be treated confidentially; provided, however, that nothing
herein shall affect the disclosure of any such information to: (i) the extent
required by statute, rule, regulation or judicial process; (ii) counsel for any
Bank or to their respective accountants; (iii) bank examiners and auditors; (iv)
any Affiliate of such Bank; (v) any other Bank, or, subject to Section 9.07(c),
any transferee or prospective transferee of any Advance, any Note or any
Commitment; or (vi) any other Person in connection with any litigation to which
any one or more of the Banks is a party; provided further, however, that each
Bank agrees that it will use reasonable efforts to promptly notify the Company
of any request for information under this clause (vi) or with respect to any
request for information not enumerated in this Section 9.10, if not otherwise
prohibited from doing so.
SECTION 9.11 Non-Reliance by the Banks. Each Bank by its signature to this
Agreement represents and warrants that (i) it has not relied in the extension of
the credit contemplated by this Agreement, nor will it rely in the maintenance
thereof, upon any assets of the Company or its Subsidiaries consisting of Margin
Stock as collateral and (ii) after reviewing the financial statements of the
Company and its Consolidated Subsidiaries referred to in Section 4.01(e), such
Bank has concluded therefrom that the consolidated cash flow of the Company and
its Consolidated Subsidiaries is sufficient to support the credit extended to
the Company pursuant to this Agreement.
-59-
<PAGE>
SECTION 9.12 No Indirect Security. Notwithstanding any Section or
provision of this Agreement to the contrary, nothing in this Agreement shall (i)
restrict or limit the right or ability of the Company or any of its Subsidiaries
to pledge, mortgage, sell, assign, or otherwise encumber or dispose of any
Margin Stock, or (ii) create an Event of Default arising out of or relating to
any such pledge, mortgage, sale, assignment or other encumbrance or disposition.
SECTION 9.13 Indemnification. The Company agrees to indemnify and hold
harmless the Administrative Agent, each Bank, and their respective officers,
directors, employees and agents (any one of the foregoing being an "Indemnified
Party" and any two or more of the foregoing being "Indemnified Parties") from
and against, and pay the Indemnified Parties the amount of, any and all claims,
damages, liabilities, and reasonable, documented out-of-pocket costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against an Indemnified
Party relating in whole or in part to this Agreement, the Notes, any documents
delivered in connection herewith and the transactions contemplated hereby, and
in connection with or arising out of or by reason of, or in connection with the
preparation of a defense of, any investigation, litigation or proceeding brought
by a Person other than the Indemnified Parties or the Company and its
Subsidiaries, arising out of, related to or in connection with (i) this
Agreement, the Notes, any of the transactions contemplated herein or the use or
proposed use of the proceeds of any Advances, (ii) any acquisition or proposed
acquisition by the Company or any of its Subsidiaries of all or any portion of
the stock or all or substantially all of the assets of any Person, or (iii) the
actual or alleged presence of Hazardous Materials on any property of the Company
or any of its Subsidiaries or any Environmental Action relating to any of them,
in each case whether or not such investigation, litigation or proceeding is
brought by the Company, any other Borrower, their respective shareholders or
creditors, an Indemnified Party or any other Person, and whether or not an
Indemnified Party is otherwise a party thereto, provided, however, that this
indemnification shall not apply to any claim, damage, liability, cost or expense
that is found in a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from an Indemnified Party's gross negligence or
willful misconduct. The covenants of the Company contained in this Section 9.13
and in Sections 9.04, 2.11, 2.12 and 2.19 shall survive the repayment of all
amounts due and payable under this Agreement and the termination of this
Agreement.
SECTION 9.14 Partial Invalidity. Wherever possible, each provision hereof
shall be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such provision shall be ineffective to the extent, but only to the
extent, of such invalidity, illegality or unenforceability without invalidating
the remainder of such invalid, illegal or unenforceable provision or provisions
or any other provisions hereof, unless such a construction would be
unreasonable.
SECTION 9.15 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED
TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS
-60-
<PAGE>
CONTEMPLATED HEREBY OR THE ACTIONS OF THE COMPANY, ANY BORROWING SUBSIDIARY, THE
ADMINISTRATIVE AGENT OR ANY BANK IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
OR ENFORCEMENT THEREOF. EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY BENCH TRIAL WITHOUT A JURY
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
SECTION 9.16 Jurisdiction, Etc. (a) Each of the parties hereto irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of any Illinois state court or federal court of the United States
of America sitting in Chicago, Illinois, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement or the Notes, or for recognition or enforcement of any judgment, and
each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in any such Illinois state court 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 any party may otherwise
have to bring any action or proceeding relating to this Agreement or the Notes
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that 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 or the Notes
in any Illinois state or federal court. Each of the parties hereto 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.
SECTION 9.17 Nonliability of Banks. The relationship between the Borrowers
on the one hand and the Banks and the Administrative Agent on the other hand
shall be solely that of borrower and lender. Neither the Administrative Agent,
the Arranger nor any Bank shall have any fiduciary responsibilities to the
Borrower. Neither the Administrative Agent, the Arranger nor any Bank undertakes
any responsibility to the Borrowers to review or inform the Borrowers of any
matter in connection with any phase of the Borrowers' business or operations.
Neither the Administrative Agent, the Arranger nor any Bank shall have any
liability with respect to, and the Borrowers waive, release and agree not to sue
for, any special, indirect or consequential damages suffered by the Borrowers in
connection with, arising out of, or in any way related to this Agreement or the
transactions contemplated thereby.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-61-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
R.R. DONNELLEY & SONS COMPANY
By:
-----------------------------------
Title:
--------------------------------
BANK ONE, NA, as Administrative Agent
and as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
FIRST UNION NATIONAL BANK, as Syndication
Agent and as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
THE NORTHERN TRUST COMPANY, as Documentation
Agent and as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
WACHOVIA BANK, N.A., as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
BANK OF AMERICA, N.A., as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH, as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
THE BANK OF TOKYO - MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
ALLFIRST BANK, as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
SEAWAY NATIONAL BANK OF CHICAGO, as a Bank
By:
-----------------------------------
Title:
--------------------------------
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Domestic Eurocurrency
Name of Bank Commitment Lending Office Lending Office
------------------------- ----------- ------------------------- --------------
<S> <C> <C> <C>
Bank One, NA $34,500,000 1 Bank One Plaza same
14th Floor, Suite 0088
Chicago, IL 60670
Attn: Martha McGuire
Phone: (312) 732-7093
FAX: (312) 732-5161
First Union National Bank $32,000,000 201 S. College Street same
CP-6
Charlotte, NC 28288-0760
Attn: Douglas A. Nickel
Phone: (704) 383-4003
FAX: (704) 715-1117
The Northern Trust $32,000,000 50 South LaSalle Street same
Company 11th Floor
Chicago, IL 60675
Attn: Laura Watzke
Phone: (312) 444-2311
FAX: (312) 630-6062
Morgan Guaranty Trust $32,000,000 60 Wall Street same
Company of New York 5th Floor
New York, NY 10260-0060
Attn: Dennis Wilczek
Phone: (212) 648-1265
FAX: (212) 648-5018
Wachovia Bank, N.A. $25,000,000 70 West Madison Street same
Suite 2440
Chicago, IL 60602
Attn: James Kinoshita
Phone: (312) 795-4331
FAX: (312) 853-0693
Bank of America, N.A. $18,500,000 100 N. Tryon Street same
17th Floor
Charlotte, NC 28255-0001
Attn: Jack Williams
Phone: (704) 388-3234
FAX: (704) 388-0960
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Domestic Eurocurrency
Name of Bank Commitment Lending Office Lending Office
------------------------- ----------- ------------------------- --------------
<S> <C> <C> <C>
The Industrial Bank of $18,500,000 227 West Monroe Street same
Japan, Limited, Chicago Suite 2600
Branch Chicago, IL 60606
Attn: Steve Ryan
Phone: (312) 855-1111
FAX: (312) 855-8200
The Bank of Tokyo - $18,500,000 227 West Monroe Street same
Mitsubishi, Ltd., Chicago Suite 2300
Branch Chicago, IL 60606
Attn: Diane Tkach
Phone: (312) 696-4663
FAX: (312) 696-4535
Allfirst Bank $12,500,000 25 South Charles Street same
18th Floor
Mail Code 101-745
Baltimore, MD 21201
Attn: Stefan Hoenicke
Phone: (410) 244-4208
FAX: (410) 244-4239
Seaway National Bank of $ 1,500,000 645 East 87th Street same
Chicago Chicago, IL 60619
Attn: Delois Davidson
Phone: (773) 602-4935
FAX: (773) 487-1850
</TABLE>
2
<PAGE>
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated as of October 12,
2000 (as amended or modified from time to time, the "364-Day Credit Agreement")
among R.R. Donnelley & Sons Company, a Delaware corporation (the "Company"), the
Banks (as defined in the 364-Day Credit Agreement) parties thereto and Bank One,
NA, as Administrative Agent for the Banks (the "Administrative Agent"). Terms
defined in the 364-Day Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I hereto agree as
follows:
The Assignor sells and assigns to the Assignee, and the Assignee purchases
and assumes from the Assignor, an interest in and to the Assignor's rights and
obligations under the 364-Day Credit Agreement as of the date hereof (other than
in respect of Uncommitted Advances and Uncommitted Notes) equal to the
percentage interest specified on Schedule 1 hereto of all outstanding rights and
obligations under the 364-Day Credit Agreement (other than in respect of
Uncommitted Advances and Uncommitted Notes). After giving effect to such sale
and assignment, the Assignee's Commitment and the amount of the Committed
Advances owing to the Assignee will be as set forth on Schedule 1 hereto.
The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the 364-Day Credit
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the 364-Day Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Company or any Borrowing Subsidiary or the performance or observance by the
Company or any Borrowing Subsidiary of any of their respective obligations under
the 364-Day Credit Agreement or any other instrument or document furnished
pursuant thereto; and (iv) attaches the Committed Note held by the Assignor and
requests that the Administrative Agent exchange such Committed Note for a new
Committed Note payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Committed Notes
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount equal to
the Commitment retained by the Assignor under the 364-Day Credit Agreement,
respectively, as specified on Schedule 1 hereto.
The Assignee (i) confirms that it has received a copy of the 364-Day Credit
Agreement, together with copies of the financial statements referred to in
Section 4.01 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Assignor or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its
A-1
<PAGE>
own credit decisions in taking or not taking action under the 364-Day Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Administrative Agent to take such action as contractual
representative on its behalf and to exercise such powers and discretion under
the 364-Day Credit Agreement as are delegated to the Administrative Agent by the
terms thereof; (v) agrees that it will perform in accordance with their terms
all of the obligations that by the terms of the 364-Day Credit Agreement are
required to be performed by it as a Bank; and (vi) attaches any U.S. Internal
Revenue Service forms required under Section 2.18 of the 364-Day Credit
Agreement.
Following the execution of this Assignment and Acceptance, it will be
delivered to the Company for acceptance and then to the Administrative Agent for
acceptance and recording. The effective date for this Assignment and Acceptance
(the "Effective Date") shall be the date of acceptance hereof by the
Administrative Agent, unless otherwise specified on Schedule 1 hereto.
Upon such acceptance and recording by the Administrative Agent, as of the
Effective Date, (i) the Assignee shall be a party to the 364-Day Credit
Agreement and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the 364-Day Credit Agreement.
Upon such acceptance and recording by the Administrative Agent, from and
after the Effective Date, the Administrative Agent shall make all payments under
the 364-Day Credit Agreement and the Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
facility fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the 364-Day Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
A-2
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
A-3
<PAGE>
SCHEDULE I
TO
ASSIGNMENT AND ACCEPTANCE
dated _______________
<TABLE>
<CAPTION>
Percentage interest assigned: ________%
<S> <C>
Assignee's Commitment: $_________________
Aggregate outstanding principal amount of Committed $_________________
Advances assigned:
Principal amount of Committed Note payable to Assignee: $_________________
Principal amount of Committed Note payable to Assignor: $_________________
Effective Date: ____________, _____
</TABLE>
[NAME OF ASSIGNOR], as Assignor
By: ______________________________
Title: ___________________________
Dated: ___________________________
[NAME OF ASSIGNEE], as Assignee
By: ______________________________
Title: ___________________________
Dated: ___________________________
Applicable Lending Offices:
Domestic: (address)
__________________________________
__________________________________
__________________________________
__________________________________
Eurocurrency: (address)
__________________________________
__________________________________
__________________________________
__________________________________
A-4
<PAGE>
Uncommitted Advances: (address)
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Accepted and approved,
____________, _____
BANK ONE, NA,
as Administrative Agent
By: ___________________________
Title: ________________________
Accepted and approved,
____________, _____
R.R. DONNELLEY & SONS COMPANY
By: ___________________________
Title: ________________________
A-5
<PAGE>
EXHIBIT B
[Form of Assumption Letter]
_____________________, ____
To the Banks parties to the
364-Day Credit Agreement referred
to below
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement dated as of October 12,
2000 among R.R. Donnelley & Sons Company, the Banks named therein and Bank One,
NA, as Administrative Agent for such Banks (as amended and in effect from time
to time, the "364-Day Credit Agreement"). Terms defined in the 364-Day Credit
Agreement and capitalized herein are used herein as defined therein.
The undersigned, ___________ (the "Subsidiary"), a _________________
corporation, proposes to become a "Borrowing Subsidiary" under the 364-Day
Credit Agreement, and accordingly agrees that from the date hereof it shall
become a "Borrowing Subsidiary" under the 364-Day Credit Agreement and agrees
that from the date hereof and until the payment in full of the principal of and
interest on all Advances made to it under the 364-Day Credit Agreement and
performance of all of its other obligations thereunder, and termination
hereunder of its status as a "Borrowing Subsidiary" as provided below, it shall
perform, comply with and be bound by each of the provisions of the 364-Day
Credit Agreement which are stated to apply to the "Company", a "Borrowing
Subsidiary" or a "Borrower". Without limiting the generality of the foregoing,
that Subsidiary represents and warrants that: (i) each of the representations
and warranties set forth in Sections 4(a), (b), (c) and (d) of the 364-Day
Credit Agreement is hereby made by such Subsidiary on and as of the date hereof
as if made on and as of the date hereof and as if such Subsidiary is the
"Company", this Assumption Letter is the "Agreement" referenced therein and each
Note issued by such Borrowing Subsidiary is the "Note" referenced therein, and
(ii) it has heretofore received a true and correct copy of the 364-Day Credit
Agreement (including any modifications thereof or supplements or waivers
thereto) as in effect on the date hereof.
So long as the principal of and interest on all Advances made to the
Subsidiary under the 364-Day Credit Agreement shall have been paid in full and
all other obligations of the Subsidiary shall have been fully performed, the
Subsidiary may by not less than five Business Days' prior notice to the Banks
terminate its status as a "Borrowing Subsidiary."
The Subsidiary irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Illinois state court or
federal court of the United States of
B-1
<PAGE>
America sitting in Chicago, Illinois, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Assumption
Letter, the 364-Day Credit Agreement or the Notes, or for recognition or
enforcement of any judgment, and the Subsidiary irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such Illinois state court or, to the extent permitted by
law, in such federal court. The Subsidiary 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 Assumption Letter shall affect any right that any Bank or the
Administrative Agent may otherwise have to bring any action or proceeding
relating to this Assumption Letter, the 364-Day Credit Agreement or the Notes in
the courts of any jurisdiction.
The Subsidiary irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Assumption Letter, the 364-Day Credit Agreement or
the Notes in any Illinois state or federal court. The Subsidiary 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.
This Assumption Letter shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
B-2
<PAGE>
IN WITNESS WHEREOF, the Subsidiary has duly executed and delivered this
Assumption Letter as of the date and year first above written.
[NAME OF BORROWING SUBSIDIARY]
By: _________________________________
Title: ______________________________
Address for Notices under the 364-Day
Credit
_____________________________________
_____________________________________
_____________________________________
_____________________________________
Consented to:
R.R. DONNELLEY & SONS COMPANY
By: ____________________________
Title: _________________________
B-3
<PAGE>
EXHIBIT C
FORM OF DESIGNATION AGREEMENT
_____________________, ____
Reference is made to the 364-Day Credit Agreement dated as of October 12,
2000 (as amended or modified from time to time, the "364-Day Credit Agreement")
among R.R. Donnelley & Sons Company, a Delaware corporation (the "Company"), the
Banks (as defined in the 364-Day Credit Agreement) parties thereto and Bank One,
NA, as Administrative Agent for the Banks (the "Administrative Agent"). Terms
defined in the 364-Day Credit Agreement are used herein with the same meaning.
__________________ (the "Designor") and _________________ (the "Designee")
-------- --------
agree as follows:
1. The Designor designates the Designee, and the Designee accepts such
designation, to have a right to make Competitive Bid Advances pursuant to
Section 2.03 of the 364-Day Credit Agreement.
2. The Designor makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the 364-Day Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, the
364-Day Credit Agreement or any other instrument or document furnished pursuant
thereto; and (ii) the financial condition of the Company or any Borrowing
Subsidiary or the performance or observance by the Company or any Borrowing
Subsidiary of any of their respective obligations under the 364-Day Credit
Agreement or any other instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the 364-Day
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Designation Agreement; (ii) agrees that it will, independently and without
reliance upon the Administrative Agent, the Designor or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the 364-Day Credit Agreement; (iii) confirms that it is a Designated Bidder;
(iv) appoints and authorizes the Administrative Agent to take such action as
contractual representative on its behalf and to exercise such powers and
discretion under the 364-Day Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; and (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the 364-Day Credit Agreement are required to be performed by it as a Bank.
C-1
<PAGE>
4. Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Company for acceptance and then to
the Administrative Agent for acceptance and recording. The effective date for
this Designation Agreement (the "Effective Date") shall be the date of
acceptance hereof by the Administrative Agent, unless otherwise specified on the
signature page hereto.
5. Upon such acceptance and recording by the Administrative Agent, as of
the Effective Date, the Designee shall be a party to the 364-Day Credit
Agreement with a right to make Competitive Bid Advances as a Bank pursuant to
Section 2.03 of the 364-Day Credit Agreement and the rights and obligations of a
Bank related thereto.
6. This Designation Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois.
7. This Designation Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by telecopier
shall be effective as delivery of a manually executed counterpart of this
Designation Agreement.
C-2
<PAGE>
IN WITNESS WHEREOF, the Designor and Designee have caused this Designation
Agreement to be executed by their officers thereunto duly authorized as of the
date specified thereon.
Effective Date: ,
------------ -----
[NAME OF DESIGNOR],
as Designor
By:
--------------------------------
Title:
-----------------------------
[NAME OF DESIGNEE],
as Designor
By:
--------------------------------
Title:
-----------------------------
Applicable Lending Office
(and address for notices):
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
C-3
<PAGE>
Accepted and approved,
,
-------------- -----
BANK ONE, NA,
as Administrative Agent
By:
--------------------------------
Title:
-----------------------------
Accepted and approved,
,
-------------- -----
R.R. DONNELLEY & SONS COMPANY
By:
--------------------------------
Title:
-----------------------------
C-4
<PAGE>
EXHIBIT D-1
FORM OF COMMITTED NOTE
____________, _____
FOR VALUE RECEIVED, the undersigned, [R.R. DONNELLEY & SONS COMPANY, a
Delaware corporation] [NAME OF APPLICABLE BORROWING SUBSIDIARY, a
__________________ corporation] (the "Company"), PROMISES TO PAY to the order of
________________________ (the "Bank") for the account of its Applicable Lending
Office on the Termination Date (or, if the Company has made the Term Loan
Election, the Maturity Date) (each as defined in the 364-Day Credit Agreement
referred to below) the aggregate principal amount of the Committed Advances made
by the Bank to the Company pursuant to the 364-Day Credit Agreement dated as of
October 12, 2000 among [the Company] [R.R. Donnelley & Sons Company], the Bank
and certain other banks parties thereto, and Bank One, NA, as Administrative
Agent for the Bank and such other banks (as amended or modified from time to
time, the "364-Day Credit Agreement"); the terms defined therein being used
herein as therein defined) outstanding on the Termination Date (or, if the
Company has made the Term Loan Election, the Maturity Date).
The Company promises to pay interest on the unpaid principal amount of each
Committed Advance made to it from the date of such Committed Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the 364-Day Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to Bank One, NA, as Administrative Agent, at the address
specified pursuant to Article II of the 364-Day Credit Agreement, in same day
funds. Each Committed Advance owing to the Bank by the Company pursuant to the
364-Day Credit Agreement, and all payments made on account of principal thereof,
shall be recorded by the Bank and, prior to any transfer hereof, endorsed on the
grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Committed Notes referred to in, and is
entitled to the benefits of, the 364-Day Credit Agreement. The 364-Day Credit
Agreement, among other things, (i) provides for the making of Committed Advances
by the Bank to the Company from time to time, the indebtedness of the Company
resulting from each such Committed Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
D-1-1
<PAGE>
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
[R.R. DONNELLEY & SONS COMPANY]
[NAME OF APPLICABLE BORROWING
SUBSIDIARY]
By:
----------------------------
Title:
-------------------------
D-1-2
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
===============================================================================
Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
<S> <C> <C> <C> <C>
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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</TABLE>
D-1-3
<PAGE>
EXHIBIT D-2
FORM OF UNCOMMITTED NOTE
U.S. $_______________ ____________, _____
FOR VALUE RECEIVED, the undersigned, [R.R. DONNELLEY & SONS COMPANY, a
Delaware corporation] [NAME OF APPLICABLE BORROWING SUBSIDIARY, a
__________________ corporation] (the "Company"), PROMISES TO PAY to the order of
________________________ (the "Bank") for the account of its Applicable Lending
Office (as defined in the 364-Day Credit Agreement dated as of October 12, 2000
among [the Company] [R.R. Donnelley & Sons Company], the Bank and certain other
banks parties thereto, and Bank One, NA, as Administrative Agent for the Bank
and such other banks (as amended or modified from time to time, the "364-Day
Credit Agreement"; the terms defined therein being used herein as therein
defined) on _______________, 19__, the principal amount of U.S.$______________.
The Company promises to pay interest on the unpaid principal amount hereof
from the date hereof until such principal amount is paid in full, at the
interest rate and payable on the interest payment date or dates provided below:
Interest Rate: ____% per annum (calculated on the basis of a year of
____ days for the actual number of days elapsed).
Interest Payment Date(s):
Both principal and interest are payable in lawful money of the United
States of America to Bank One, NA, for the account of the Bank, at the address
specified pursuant to Article II of the 364-Day Credit Agreement, in same day
funds.
This Promissory Note is one of the Uncommitted Notes referred to in, and is
entitled to the benefits of, the 364-Day Credit Agreement. The 364-Day Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereupon upon the happening of certain stated events.
The Company waives presentment, demand, protest and notice of any kind. No
failure to exercise, and no delay in exercising, any rights hereunder on the
part of the holder hereof shall operate as a waiver of such rights.
D-2-1
<PAGE>
This Promissory Note shall be governed by, and construed in accordance
with, the laws of the State of Illinois.
[R.R. DONNELLEY & SONS COMPANY]
[NAME OF APPLICABLE BORROWING
SUBSIDIARY]
By:
-----------------------------
Title:
--------------------------
D-2-2
<PAGE>
EXHIBIT E-1
NOTICE OF COMMITTED BORROWING
Bank One, NA, as Administrative Agent
1 Bank One Plaza
Chicago, Illinois 60670
____________, _____
Ladies and Gentlemen:
The undersigned, ________________, refers to the 364-Day Credit Agreement
dated as of October 12, 2000 (as amended, modified or supplemented from time to
time, the "364-Day Credit Agreement", the terms defined therein being used
herein as therein defined), among [the undersigned,] [R.R. Donnelley & Sons
Company (the "Company")], certain Banks parties thereto and Bank One, NA, as
Administrative Agent for such Banks, and notifies you, pursuant to Section 2.02
of the 364-Day Credit Agreement, that the undersigned requests a Committed
Borrowing under the 364-Day Credit Agreement, and in that connection sets forth
below the information relating to such Committed Borrowing (the "Proposed
Committed Borrowing") as required by Section 2.02(a) of the 364-Day Credit
Agreement:
(i) The Business Day of the Proposed Committed Borrowing is ___________,
_____.
(ii) The Type of Committed Advances comprising the Proposed Committed
Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The currency for the Proposed Committed Borrowing is [Dollars] [type
of Alternative Currency].
(iv) The aggregate amount of the Proposed Committed Borrowing is
$__________.
(v) The Interest Period for each Eurocurrency Rate Advance made as part
of the Proposed Committed Borrowing is ______ month[s].
The undersigned certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Committed Borrowing:
(a) the representations and warranties contained in subsections (a),
(b), (c), (d), (e)(i), (f)(ii) and (g) through (o) of Section 4.01 of the 364-
Day Credit Agreement are correct, before and after giving effect to the Proposed
Committed Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed Committed Borrowing or from the application of the proceeds therefrom,
that
E-1-1
<PAGE>
constitutes an Event of Default or that would constitute an Event of Default but
for the requirement that notice be given or time elapse or both; and
(c) the aggregate principal amount (or, in the case of securities
issued at a discount from the principal amount at maturity, the accreted amount)
of indebtedness for borrowed money (after giving effect to the Proposed
Committed Borrowing and the application of the proceeds thereof) of [the
undersigned] [the Company] and its Subsidiaries does not exceed the maximum
amount thereof presently authorized by [the undersigned's] [the Company's] Board
of Directors.
Very truly yours,
[NAME OF BORROWER]
By:
-------------------------------
Title:
----------------------------
E-1-2
<PAGE>
EXHIBIT E-2
NOTICE OF UNCOMMITTED BORROWING
Bank One, NA, as Administrative Agent
1 Bank One Plaza
Chicago, Illinois 60670
____________, _____
Attention: ____________________
Ladies and Gentlemen:
The undersigned, _____________, refers to the 364-Day Credit Agreement,
dated as of October 12, 2000 ( as amended, modified or supplemented from time to
time, the "364-Day Credit Agreement", the terms defined therein being used
herein as therein defined), among [the undersigned] [R.R. Donnelley & Sons
Company (the "Company")], certain Banks parties thereto and Bank One, NA, as
Administrative Agent for such Banks, and notifies you pursuant to Section 2.03
of the 364-Day Credit Agreement that the undersigned requests an Uncommitted
Borrowing under the 364-Day Credit Agreement, and in that connection sets forth
the terms on which such Uncommitted Borrowing (the "Proposed Uncommitted
Borrowing") is requested to be made:
<TABLE>
<S> <C>
(A) Date: _____________________________
(B) Amount: $____________________________
(C) Type of Quote Requested:/1/ Uncommitted
Borrowing Margin
Fixed Rate___________________
(D) Maturity Date: _____________________________
Prepayment terms: May [not] be prepaid,
[with] [without] penalty
Prepayment penalty:/2/ _____________________________
(E) Interest Payment Date(s): _____________________________
(F) Borrower: _____________________________
(G) Other terms:
</TABLE>
----------------
/1/ Select one.
/2/ Include if applicable.
E-2-1
<PAGE>
The undersigned certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Uncommitted Borrowing:
(a) the representations and warranties contained in subsections (a), (b),
(c), (d), (e)(i), (f)(ii) and (g) through (o) of Section 4.01 are correct,
before and after giving effect to the Proposed Uncommitted Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from the
Proposed Uncommitted Borrowing or from the application of the proceeds
therefrom, that constitutes an Event of Default or that would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both;
(c) the aggregate principal amount (or, in the case of securities issued
at a discount from the principal amount at maturity, the accreted amount) of
indebtedness for borrowed money (after giving effect to the Proposed Uncommitted
Borrowing and to the application of proceeds therefrom) of [the undersigned]
[the Company] and its Subsidiaries does not exceed the maximum amount thereof
presently authorized by the Board of Directors of [the undersigned] [the
Company];
The undersigned confirms that the Proposed Uncommitted Borrowing is to be
made available to it in accordance with Section 2.03(a)(iv) of the 364-Day
Credit Agreement.
[NAME OF BORROWER]
By:
------------------------------------
Title:
---------------------------------
E-2-2
<PAGE>
EXHIBIT F
FORM OF NOTICE OF CONVERSION OR CONTINUATION
TO: Bank One, NA, as Administrative Agent (the "Administrative Agent") under
that certain 364-Day Credit Agreement dated as of October 12, 2000 (the
"364-Day Credit Agreement") by and among R.R. Donnelley & Sons Company (the
"Company"), the Administrative Agent and the Banks parties thereto.
Pursuant to the terms and conditions of the 364-Day Credit Agreement, this
Notice of Conversion or Continuation ("Notice") represents the election of the
Company to [insert one of the following]:
/1/convert $___________ in aggregate principal amount of Base Rate Advances
to Eurocurrency Rate Advances on ___________, _____. The initial Interest Period
for such Eurocurrency Rate Advances is requested to be a _______________ (_____)
month period. [and]/2/
/3/convert $___________ in aggregate principal amount of Eurocurrency Rate
Advances with a current Interest Period ending ____________________ to Base Rate
Advances on ___________, _____.
/4/continue as Eurocurrency Rate Advances $___________ in aggregate
principal amount of presently outstanding Eurocurrency Rate Advances with a
current Interest Period ending _________________, for a _____ month period
commencing on ___________, _____.
Unless otherwise defined herein, terms defined in the 364-Day Credit
Agreement shall have the same meanings in this Notice.
Dated: ,
---------------- ----
[NAME OF BORROWER]
By:
-------------------------------------
Title:
----------------------------------
------------------
/1/Use if converting Base Rate Advances to Eurocurrency Rate Advances.
/2/Use if converting only a portion of Eurocurrency Rate Advances and continuing
the balance as Eurocurrency Rate Advances.
/3/Use if converting Eurocurrency Rate Advances to Base Rate Advances.
/4/Use if continuing Eurocurrency Rate Advances.
F-1
<PAGE>
EXHIBIT G
COMMITMENT INCREASE CONSENT
This Commitment Increase Consent (this "Assumption Agreement") among R.R.
Donnelley & Sons Company (the "Borrower"), Bank One, NA, as Administrative Agent
and ___________ (the "Assuming Bank") is dated as of ______, ______. The parties
hereto agree as follows:
1. PRELIMINARY STATEMENT. The Borrower, the Agent and certain Lenders are
party to that certain 364-Day Credit Agreement dated as of October 12, 2000
(which, as it may be amended, modified, renewed or extended from time to time is
herein called the "Credit Agreement"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSUMPTION. Pursuant to Section 2.24 of the Credit Agreement, the
Borrower has requested an increase in the aggregate Commitments and the Assuming
Bank has agreed, pursuant to such request, to assume the rights and obligations
of a Bank party to the Credit Agreement with a Commitment of $__________.
Immediately upon giving effect to the execution and delivery of this Assumption
Agreement, the Assuming Bank will be a Lender under the Credit Agreement with a
Commitment in such amount, together with all the rights and obligations
appurtenant thereto, including without limitation an obligation to make
Committed Advances to the Borrower in an aggregate amount at any one time
outstanding not exceeding the amount of its Commitment.
3. CONDITIONS PRECEDENT. This Assumption Agreement shall become effective
as of the Effective Date (defined below) when the Agent has received:
(i) counterparts of this Assumption Agreement duly executed and
delivered by each of the Borrower, the Agent and the Assuming Bank,
(ii) a Committed Note in the amount of $________ duly executed by the
Borrower payable to the order of the Assuming Bank, and
(iii) a certificate of an officer of the Borrower confirming that the
amount of the aggregate Commitments, after giving effect to the assumption, has
been authorized by the Borrower's Board of Directors.
4. EFFECTIVE DATE. The effective date of this Assumption Agreement (the
"Effective Date") shall be ________, _______ or such other date as is specified
by the Agent to the Assuming Bank.
5. PAYMENT OBLIGATIONS. In consideration for the assumption of its rights
and obligations hereunder, the Assuming Bank shall pay the Borrower and/or the
other Lenders under the Credit Agreement, on the Effective Date, the amounts
specified by the Agent and agreed to by such parties. On and after the Effective
Date, the Assuming Bank shall be entitled to receive from the Agent all payments
of principal, interest and fees and other amounts with respect to the interest
assumed hereby. The Assuming Bank will promptly remit to the Agent for
G-1
<PAGE>
further distribution any interest on Committed Advances and fees received from
the Agent which relate to the portion (if any) of the Commitment, Committed
Advances or other obligations assumed by the Assuming Bank hereunder for periods
prior to the Effective Date and not previously paid by the Assuming Bank to the
Agent.
6. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSUMING BANK. The Assuming Bank
(i) confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assuming Bank and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Commitment Increase Consent, (ii)
agrees that it will, independently and without reliance upon the Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, (iii) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under the Credit Agreement as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto, (iv) confirms
that the execution and delivery of this Commitment Increase Consent by the
Assuming Bank is duly authorized, (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender, (vi) agrees that its
payment instructions and notice instructions are as set forth in the attachment
hereto, (vii) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are "plan
assets" as defined under ERISA and that its rights, benefits and interests in
and under the Credit Agreement and the Notes will not be "plan assets" under
ERISA, (viii) agrees to indemnify and hold the Agent and the Borrower harmless
against all losses, costs and expenses (including, without limitation,
reasonable attorneys' fees) and liabilities incurred by the Agent or the
Borrower in connection with or arising in any manner from the Assuming Bank's
non-performance of the obligations assumed under this Commitment Increase
Consent, and (ix) if applicable, attaches the forms prescribed by the Internal
Revenue Service of the United States certifying that the Assuming Bank is
entitled to receive payments under the Credit Agreement and the Notes without
deduction or withholding of any United States federal income taxes.
7. GOVERNING LAW. This Commitment Increase Consent shall be governed by the
internal law, and not the law of conflicts, of the State of Illinois.
8. NOTICES. Notices shall be given under this Commitment Increase Consent
in the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall be
the address set forth in the attachment hereto.
9. COUNTERPARTS; DELIVERY BY FACSIMILE. This Commitment Increase Consent
may be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Commitment Increase Consent shall be deemed to constitute
due and sufficient delivery of such counterpart and such facsimile shall be
deemed to be an original counterpart of this Commitment Increase Consent.
G-2
<PAGE>
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto have
executed this Commitment Increase Consent as of the date first above written.
R.R. DONNELLEY & SONS COMPANY
By:
-------------------------------------
Title:
----------------------------------
BANK ONE, NA, as Administrative Agent
By:
-------------------------------------
Title:
----------------------------------
Commitment: $ ,
------------ ----------------------------------------
as Assuming Bank
By:
-------------------------------------
Title:
----------------------------------
G-3
<PAGE>
Attachment to COMMITMENT INCREASE CONSENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assuming Bank's Administrative Information Sheet, which must
include notice addresses for the Assuming Bank
(Sample form shown below)
ASSUMING BANK INFORMATION
Contact:
--------
Name: Telephone No.:
------------------------------------ --------------------
Fax No.:
---------------------------------
Key Operations Contacts:
------------------------
Booking Installation: Booking Installation:
-------------------- -------------
Name: Name:
------------------------------------ -----------------------------
Telephone No.: Telephone No.:
--------------------------- --------------------
Fax No.: Fax No.:
--------------------------------- --------------------------
Telex No.: Telex No.:
------------------------------- ------------------------
Answerback: Answerback:
------------------------------ -----------------------
Payment Information:
--------------------
Name & ABA # of Destination Bank:
----------------------------------------------
--------------------------------------------------------------------------------
Account Name & Number for Wire Transfer:
---------------------------------------
---------------------------------------
Other Instructions:
------------------------------------------------------------
--------------------------------------------------------------------------------
Address for Notices for Assuming Bank:
-------------------------------------- -----------------------------------------
-----------------------------------------
-----------------------------------------
G-4
<PAGE>
BANK ONE INFORMATION
Assuming Bank will be called promptly upon receipt of the signed agreement.
Initial Funding Contact: Subsequent Operations Contact:
------------------------ ------------------------------
Name: Name:
------------------------------------ -----------------------------
Telephone No.: (312) Telephone No.: (312)
--------------------------- --------------------
Fax No.: (312) Fax No.: (312)
--------------------------------- --------------------------
Initial Funding Standards:
--------------------------
Libor - Fund 2 days after rates are set.
Bank One Wire Instructions: Bank One, NA, ABA # 071000013
--------------------------- BNF = 7521-7653/DES, Ref:
---------
Address for Notices for Bank One: 1 Bank One Plaza
--------------------------------- Chicago, IL 60670
Attn: Agency Compliance Division,
Suite 0353
Fax No. (312) 732-2038 or
(312) 732-4339
G-5
<PAGE>
EXHIBIT H
Opinion of Counsel to the Company
October 12, 2000
To each of the Banks parties to
the "364-Day Credit Agreement" (as defined below),
and to Bank One, NA, as Administrative Agent
Re: R.R. Donnelley & Sons Company
-----------------------------
Ladies and Gentlemen:
We have acted as counsel to R.R. Donnelley & Sons Company, a Delaware
corporation (the "Company"), in connection with the 364-Day Credit Agreement of
even date herewith (the "364-Day Credit Agreement") among the Company, the
financial institutions parties thereto (the "Banks") and Bank One, NA, as
Administrative Agent, and the transactions contemplated thereby.
This opinion is furnished to you at the request of the Company pursuant to
Section 3.01(a)(v) of the 364-Day Credit Agreement. Capitalized terms used
herein and not otherwise defined are used as defined in the 364-Day Credit
Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the 364-Day Credit
Agreement and the promissory notes delivered on the date hereof to the Banks
signatory to the 364-Day Credit Agreement (the "Notes").
In rendering the opinions set forth herein, we have also examined originals
or copies, certified to our satisfaction, of such (i) certificates of public
officials, (ii) certificates of officers and representatives of the Company, and
(iii) other documents and records, and we have made such inquiries of officers
and representatives of the Company, as we have deemed relevant or necessary as
the basis for such opinions. We have relied as to factual matters upon, and
assumed the accuracy of, such certificates, the representations and warranties
of the Company made in the 364-Day Credit Agreement, and other statements,
documents and records supplied to us by the Company, and we have assumed the
genuineness of all signatures (other than signatures of officers of the Company)
and the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the 364-Day Credit Agreement, other than the
Company, are duly organized, validly existing, and in good standing under the
laws of their respective jurisdictions
H-1
<PAGE>
of organization and have the requisite corporate power to enter into the 364-Day
Credit Agreement; and
(ii) the execution and delivery of the 364-Day Credit Agreement have been
duly authorized by all necessary corporate action and proceedings on the part of
all parties thereto other than the Company; the 364-Day Credit Agreement has
been duly executed and delivered by all parties thereto and constitutes the
valid and binding obligation of all parties thereto other than the Company,
enforceable against such parties in accordance with its terms.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that, as of the date hereof:
1. The Company has been duly organized and is validly existing and in good
standing under the laws of the State of Delaware. The Company has the requisite
corporate power and authority to conduct its business as currently conducted.
2. The Company has the requisite corporate power and authority to execute,
deliver and perform its obligations under the 364-Day Credit Agreement and the
Notes. Such execution, delivery and performance:
(a) have been duly authorized by all necessary and proper corporate
action of the Company,
(b) do not violate any provision of the certificate of incorporation
or by-laws of the Company or require any approval of the Company's stockholders,
(c) do not violate the General Corporation Law of the State of
Delaware, any law or regulation of the State of Illinois (including, without
limitation, any usury laws) or of the United States of America applicable to the
Company,
(d) do not contravene that certain Indenture dated as of November 1,
1990, between the Company and Citibank, N.A., as Trustee, or, to our knowledge,
any other material agreement or instrument binding on the Company.
3. The 364-Day Credit Agreement constitutes, and from and after the initial
Committed Borrowing the Committed Notes will constitute, the valid and binding
obligations of the Company, enforceable in accordance with their respective
terms.
4. No approval, consent or authorization of, or filing or registration
with, any governmental department, agency or instrumentality is necessary for
the Company's execution or delivery of the 364-Day Credit Agreement or the
Notes, or for the Company's performance of any of the terms thereof.
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect and
enforceability in Paragraph 3 above are subject to limitations imposed by any
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws affecting creditors' rights
H-2
<PAGE>
generally. In addition, our opinions relating to enforceability in paragraph 3
above are subject to (i) the effect of general principles of equity (regardless
of whether considered in a proceeding in equity or at law) and (ii) limitations
imposed by public policy under certain circumstances on the enforceability of
provisions indemnifying a party against liability for its own wrongful or
negligent acts. In applying principles of equity referred to in clause (i)
above, a court, among other things, might not allow a creditor to accelerate
maturity of a debt upon the occurrence of a default deemed immaterial. Such
principles applied by a court might include a requirement that a creditor act
reasonably and in good faith.
(b) Certain remedial and waiver provisions of the 364-Day Credit
Agreement may be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the 364-Day Credit Agreement;
however, the unenforceability of such provisions may result in delays in the
enforcement of the Administrative Agent's and the Banks' rights and remedies
under the 364-Day Credit Agreement (and we express no opinion as to the economic
consequences, if any, of such delays).
(c) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Banks with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Banks because of the Administrative Agent's or any of the Banks' legal or
regulatory status, the nature of the business of the Administrative Agent or any
of the Banks or the qualification of any such party to conduct business in any
jurisdiction.
The foregoing opinions are limited to the laws of the United States, the
State of Illinois and the General Corporation Law of the State of Delaware, and
we express no opinion with respect to the laws of any other state or
jurisdiction.
The opinions expressed herein are being delivered to you as of the date
hereof and are solely for your benefit in connection with the transactions
contemplated in the 364-Day Credit Agreement and may not be relied on in any
manner or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other person
or entity without our express prior written consent, except that you may furnish
copies thereof to each party that becomes a Bank after the date hereof pursuant
to the 364-Day Credit Agreement, and such parties may rely on this opinion as if
it had been originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any issue
not expressly addressed in numbered Paragraphs 1 through 4. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
H-3
<PAGE>
EXHIBIT I
Opinion of Counsel to a Borrowing Subsidiary
[Date]
To each of the Banks parties to
the "364-Day Credit Agreement" (as defined below),
and to Bank One, NA, as Administrative Agent
Re: [Borrowing Subsidiary]
--------------------
Ladies and Gentlemen:
We have acted as counsel to R.R. Donnelley & Sons Company, a Delaware
corporation (the "Company") and ___________________, a _____________ corporation
and Subsidiary of the Company (the "Borrowing Subsidiary"), in connection with
the 364-Day Credit Agreement dated as of October 12, 2000 (as the same has been
or may be amended, modified or supplemented, the "364-Day Credit Agreement")
among the Company, the financial institutions parties thereto (the "Banks") and
Bank One, NA, as Administrative Agent, and the transactions contemplated
thereby.
This opinion is furnished to you at the request of the Company pursuant to
Section 3.02(e) of the 364-Day Credit Agreement. Capitalized terms used herein
and not otherwise defined are used as defined in the 364-Day Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the 364-Day Credit
Agreement, the Assumption Letter of even date herewith executed by the Borrowing
Subsidiary and delivered to the Banks (the "Assumption Letter") and the
promissory notes executed by the Borrowing Subsidiary on the date hereof and
delivered to the Banks (the "Notes").
In rendering the opinions set forth herein, we have also examined originals
or copies, certified to our satisfaction, of such (i) certificates of public
officials, (ii) certificates of officers and representatives of the Company and
the Borrowing Subsidiary (including the certificate attached hereto (the
"Certificate")), and (iii) other documents and records, and we have made such
inquiries of officers and representatives of the Company and the Borrowing
Subsidiary, as we have deemed relevant or necessary as the basis for such
opinions. We have relied as to factual matters upon, and assumed the accuracy
of, such certificates, the representations and warranties of the Company and the
Borrowing Subsidiary made (or deemed made) in the 364-Day Credit Agreement and
the Assumption Letter, and other statements, documents and records supplied to
us by the Company and the Borrowing Subsidiary, and we have assumed the
genuineness of all signatures (other than signatures of officers of the
Borrowing Subsidiary) and
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<PAGE>
the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the 364-Day Credit Agreement and the Assumption
Letter, other than the Borrowing Subsidiary, are duly organized, validly
existing and in good standing under the laws of their respective jurisdictions
of organization and have the requisite corporate power to enter into the 364-Day
Credit Agreement and the Assumption Letter; and
(ii) the execution and delivery of the 364-Day Credit Agreement have been
duly authorized by all necessary corporate action and proceedings on the part of
all parties thereto; the 364-Day Credit Agreement has been duly executed and
delivered by all parties thereto and constitutes the valid and binding
obligation of all parties thereto, other than the Borrowing Subsidiary,
enforceable against such parties in accordance with its terms.
Based upon the foregoing and subject to the qualifications stated herein,
we are of the opinion that, as of the date hereof:
1. The Borrowing Subsidiary has been duly organized and is validly existing
and in good standing under the laws of _____________. The Borrowing Subsidiary
has the requisite corporate power and authority to conduct its business as
currently conducted.
2. The Borrowing Subsidiary has the requisite corporate power and authority
to execute, deliver and perform its obligations under the Assumption Letter, the
364-Day Credit Agreement and the Notes. Such execution, delivery and
performance:
(a) have been duly authorized by all necessary and proper corporate
action of the Borrowing Subsidiary,
(b) do not violate any provision of the certificate of incorporation
or by-laws of the Borrowing Subsidiary or require any approval of the Borrowing
Subsidiary's stockholders,
(c) will not violate any law or regulation of ____________, the State
of Illinois (including, without limitation, any usury laws) or of the United
States of America applicable to the Borrowing Subsidiary,/1/ and
(d) do not contravene any agreement set forth on the Certificate, or,
to our knowledge, any other material agreement or instrument binding on the
Borrowing Subsidiary.
3. The Assumption Letter constitutes, and from and after the initial
Committed Borrowing to the Borrowing Subsidiary, the Notes will constitute, the
valid and binding obligations of the Borrowing Subsidiary, enforceable in
accordance with their respective terms.
4. No approval, consent or authorization of, or filing or registration
with, any governmental department, agency or instrumentality is necessary for
the Borrowing Subsidiary's
----------------
/1/ To be revised if the Borrowing Subsidiary is not a domestic corporation.
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<PAGE>
execution or delivery of the Assumption Letter or the Notes, or for the
Borrowing Subsidiary's performance of any of the terms thereof.
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect and
enforceability in Paragraph 3 above are subject to limitations imposed by any
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and similar laws affecting creditors' rights generally. In addition,
our opinions relating to enforceability in paragraph 3 above are subject to (i)
the effect of general principles of equity (regardless of whether considered in
a proceeding in equity or at law) and (ii) limitations imposed by public policy
under certain circumstances on the enforceability of provisions indemnifying a
party against liability for its own wrongful or negligent acts. In applying
principles of equity referred to in clause (i) above, a court, among other
things, might not allow a creditor to accelerate maturity of a debt upon the
occurrence of a default deemed immaterial. Such principles applied by a court
might include a requirement that a creditor act reasonably and in good faith.
(b) Certain remedial and waiver provisions of the 364-Day Credit
Agreement applicable to the Borrowing Subsidiary pursuant to the Assumption
Letter may be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Assumption Letter; however, the
unenforceability of such provisions may result in delays in the enforcement of
the Administrative Agent's and the Banks' rights and remedies under the
Assumption Letter (and we express no opinion as to the economic consequences, if
any, of such delays).
(c) We express no opinion as to the effect of the compliance or
noncompliance of the Administrative Agent or any of the Banks with any state or
federal laws or regulations applicable to the Administrative Agent or any of the
Banks because of the Administrative Agent's or any of the Banks' legal or
regulatory status, the nature of the business of the Administrative Agent or any
of the Banks or the qualification of any such party to conduct business in any
jurisdiction.
The foregoing opinions are limited to the laws of the United States, the
State of Illinois and the corporate law of [jurisdiction where the Borrowing
Subsidiary is incorporated] and we express no opinion with respect to the laws
of any other state or jurisdiction.
[Whenever in this opinion reference is made to our knowledge, such
reference is to the conscious awareness of [insert appropriate names] of
information regarding factual matters. With respect to such matters, such
persons have not, with your express permission and consent, undertaken any
investigation or inquiry either of other lawyers, files maintained by the firm,
or officers or employees of the Company or any of its Subsidiaries (including
without limitation the Borrowing Subsidiary). The reference to "conscious
awareness" as used in this paragraph has the meaning given that phrase in the
Third-Party Legal Opinion Report, Including the Legal Opinion Accord, of the
Section of Business Law, American Bar Association, 47 Bus. Law. 167, 192
(1991).]
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<PAGE>
The opinions expressed herein are being delivered to you as of the date
hereof and are solely for your benefit in connection with the transactions
contemplated in the 364-Day Credit Agreement and may not be relied on in any
manner or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other person
or entity without our express prior written consent, except that you may furnish
copies thereof to each party that becomes a Bank after the date hereof pursuant
to the 364-Day Credit Agreement, and such parties may rely on this opinion as if
it had been originally addressed to them.
We do not express any opinion, either implicitly or otherwise, on any issue
not expressly addressed in numbered Paragraphs 1 through 4. The opinions
expressed above are based solely on facts, laws and regulations existing and in
effect on the date hereof, and we assume no obligation to revise or supplement
this opinion should such facts change or should such laws or regulations be
changed by legislative or regulatory action, judicial decision or otherwise,
notwithstanding that such changes may affect the legal analysis or conclusions
contained in this opinion.
Very truly yours,
I-4
<PAGE>
CERTIFICATE
I, _________________________, am the ______________ ____________________ of
[Borrowing Subsidiary], a ____________ corporation (the "Borrowing Subsidiary").
The Borrowing Subsidiary is entering into an Assumption Letter dated as of
_________________, 19__, pursuant to which it will become a party to the 364-Day
Credit Agreement dated as of October 12, 2000 among R.R. Donnelley & Sons
Company (the "Company"), the banks party thereto ("Banks") and Bank One, NA, as
Administrative Agent ("Administrative Agent") for such Banks (the "364-Day
Credit Agreement").
The 364-Day Credit Agreement requires that [name of law firm] issue a legal
opinion to the Administrative Agent and the Banks. In connection with such legal
opinion, the Company certifies to [name of law firm] that:
1. Not more than twenty-five percent (25%) of the value of the assets
subject to any "arrangement" (as such term is used in Section 221.2(g)(1) of
Regulation U of the Board of Governors of the Federal Reserve System) under the
364-Day Credit Agreement is represented by "margin stock" (as such term is
defined in Regulation U of the Board of Governors of the Federal Reserve
System).
2. The Borrowing Subsidiary has not granted to the Administrative Agent or
the Banks any direct security for the Company's or the Borrowing Subsidiary's
obligations to the Administrative Agent and the Banks under the 364-Day Credit
Agreement.
3. There is no material agreement or instrument binding on the Borrowing
Subsidiary that governs or evidences indebtedness for borrowed money or would
affect the Borrowing Subsidiary's ability to perform its obligations under the
Assumption Letter, the 364-Day Credit Agreement or the Notes, except:
a.
---------------------
b.
---------------------
c.
---------------------
[BORROWING SUBSIDIARY]
By:
-------------------------------------
Title:
----------------------------------
Dated:
----------------------
I-1
