SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Filed pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
February 15, 1995
Date of Earliest Event Reported
COMDISCO, INC.
(a Delaware Corporation)
6111 North River Road
Rosemont, Illinois 60018
Telephone (708) 698-3000
Commission file number 1-7725
I.R.S. Employer Identification Number 36-2687938
Item 7. Financial Statements and Exhibits
(c) Exhibits
10.01 Third Amended and Restated Global Credit Agreement dated as of
December 20, 1994 among Comdisco, Inc. and the banks party thereto.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Current Report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
COMDISCO, INC.
Date: February 15, 1995 by: /s/ David J. Keenan
David J. Keenan
Vice President and
Corporate Controller
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EXECUTION COPY
U.S. $300,000,000
THIRD AMENDED AND RESTATED
GLOBAL CREDIT AGREEMENT
Dated as of December 20, 1994
Among
COMDISCO, INC.
as the Company
THE SUBSIDIARIES OF THE COMPANY PARTY HERETO
as Multicurrency Borrowers
THE BANKS PARTY HERETO
as Banks
NATIONSBANK OF NORTH CAROLINA, N.A.
as Bid Agent
and
CITIBANK, N.A.
as Administrative Agent
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T A B L E O F C O N T E N T S
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Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS 1
1.01. Certain Defined Terms 1
1.02. Other Definitions 27
1.03. Computation of Time Periods 28
1.04. Accounting Terms 28
1.05. Other Definitional Provisions 28
ARTICLE II
AMOUNT AND TERMS OF THE TRANCHE A SUBFACILITY 28
2.01. The European Letters of Credit 28
2.02. European Ancillary Loans 29
2.03. Payments Under the European Letters of Credit;
Reimbursement Obligations 30
2.04. Participations 31
ARTICLE III
AMOUNT AND TERMS OF THE TRANCHE B SUBFACILITY 33
3.01. The Western Pacific Letters of Credit 33
3.02. Western Pacific Ancillary Loans 33
3.03. Payments Under the Western Pacific Letters of
Credit; Reimbursement Obligations 35
3.04. Participations 36
ARTICLE IV
AMOUNT AND TERMS OF THE TRANCHE C SUBFACILITY 37
4.01. The Asian Letters of Credit 37
4.02. Asian Ancillary Loans 38
4.03. Payments Under the Asian Letters of Credit;
Reimbursement Obligations 39
4.04. Participations 40
ARTICLE V
AMOUNTS AND TERMS OF THE TRANCHE D SUBFACILITY 41
5.01. The Syndicated Loans 41
5.02. Making the Syndicated Loans 42
5.03. The Bid Rate Loans 44
5.04. Tranche D Facility Fee 48
5.05. Repayment 48
5.06. Interest on Syndicated Loans 48
5.07. Voluntary Conversion of Loans 49
5.08. Prepayments 50
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ARTICLE VI
AMOUNT AND TERMS OF THE TRANCHE E SUBFACILITY 50
6.01. The Tranche E Letter of Credit 50
6.02. Series 1 CP Notes 52
6.03. Series 1 Related Accounts 53
6.04. Drawings Under the Tranche E Letter of Credit 54
6.05. Payments Under the Tranche E Letter of Credit 55
6.06. Reimbursement 56
6.07. Participations 57
6.08. Termination of Issuance of Series 1 CP Notes 58
6.09. Removal and Appointment of Commercial Paper Dealer 60
ARTICLE VII
AMOUNT AND TERMS OF THE TRANCHE F SUBFACILITY 61
7.01. The Multicurrency Loans 61
7.02. Making the Multicurrency Loans 61
7.03. Tranche F Facility Fee 64
7.04. Repayment 64
7.05. Interest 65
7.06. Prepayments 65
7.07. Removal of a Multicurrency Bank; Additional
Multicurrency Banks 66
7.08. Guaranty 67
ARTICLE VII
TRANCHE REALLOCATION AND COMMITMENT REDUCTION 71
8.01. Reallocation of the Tranche Commitments 71
8.02. Reduction of the Commitments 74
8.03. Termination and Reinstatement of a Tranche Commitment 74
ARTICLE IX
GENERAL TRANCHE PROVISIONS 74
9.01. Payments and Computations 74
9.02. Right of Set-off 77
9.03. Sharing of Payments, Etc 78
9.04. Increased Costs, Reserves and Capital 78
9.05. Taxes 81
9.06. Fees 84
9.07. Interest Rate Provisions 84
9.08. Illegality 87
9.09. Obligations Absolute 88
9.10. Right of Set-Off Against Defaulting Banks 89
9.11. Participation of the Banks in the Letters of Credit 91
9.12. Indemnification; Nature of the Duties of the Issuing
Banks 92
9.13. Promissory Notes 94
ARTICLE X
CONDITIONS PRECEDENT 95
10.01. Conditions Precedent to Closing 95
10.02. Conditions Precedent to Each Borrowing, Letter
of Credit, Reallocation and Extension of Scheduled
Maturity Date 97
10.03. Additional Conditions Precedent to Each Bid Rate
Borrowing 98
ARTICLE XI
REPRESENTATIONS AND WARRANTIES 99
11.01. Representations and Warranties of the Company 99
11.02. Representations and Warranties of the Other
Multicurrency Borrowers 103
ARTICLE XII
COVENANTS OF THE COMPANY 104
12.01. Affirmative Covenants 104
12.02. Reporting Covenants 105
12.03. Negative Covenants 108
12.04. Financial Covenants 112
ARTICLE XII
EVENTS OF DEFAULT 114
13.01. Events of Default 114
13.02. Remedies 117
ARTICLE XIV
THE AGENTS 119
14.01. Authorization and Action 119
14.02. Nature of Agents' Duties 120
14.03. Rights, Exculpation, Etc 120
14.04. Rights as a Bank 121
14.05. Bank Credit Decision 121
14.06. Indemnification 122
14.07. Resignation or Removal of Agents 122
ARTICLE XV
MISCELLANEOUS 123
15.01. Amendments, Etc 123
15.02. Notices 124
15.03. No Waiver; Remedies 126
15.04. Fees and Expenses; Indemnity 126
15.05. Successors and Assigns; Subsequent Holders of Notes 128
15.06. Assignments and Participations 129
15.07. Extension of Scheduled Maturity Date 132
15.08. Replacement or Removal of a Bank or Issuing
Bank in the Event of an Adverse Condition 133
15.09. Confidentiality 135
15.10. Change in Accounting Principles 136
15.11. Independence of Covenants 136
15.12. Survival of Warranties and Agreements 136
15.13. Payments Set Aside 137
15.14. Severability 137
15.15. Headings 137
15.16. Governing Law 137
15.17. Limitation of Liability 137
15.18. Consent to Jurisdiction and Service of Process 138
15.19. Waiver of Jury Trial 138
15.20. Counterparts; Effectiveness; Inconsistencies 139
15.21. Construction 139
15.22. Entire Agreement 139
15.23. Replacement of the Second Amended Agreement 139
15.24. Additional Banks 140
15.25. Company as Agent for Other Multicurrency Borrowers 141
15.26. Judgment Currencies 141
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EXHIBITS
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Exhibit A - Form of European Letter of Credit
Exhibit A-1 - Form of European Certificate of Designation
Exhibit B - Form of Western Pacific Letter of Credit
Exhibit B-1 - Form of Western Pacific Certificate of Designation
Exhibit C - Form of Asian Letter of Credit
Exhibit C-1 - Form of Asian Certificate of Designation
Exhibit D - Form of Notice of Syndicated Borrowing
Exhibit D-1 - Form of Notice of Bid Rate Borrowing
Exhibit E - Form of Tranche E Letter of Credit
Exhibit E-1 - Form of Tranche E Issuing Bank Acceptance Certificate
Exhibit F - Form of Notice of Multicurrency Borrowing
Exhibit F-1 - Form of Multicurrency Borrower Assumption Agreement
Exhibit G - Form of Notice of Conversion
Exhibit H - Form of Notice of Reallocation
Exhibit I-1 - Form of Bid Rate Note
Exhibit I-2 - Form of Company Note
Exhibit I-3 - Form of Multicurrency Note
Exhibit J - Form of Compliance Certificate
Exhibit K - Form of Assignment and Acceptance
Exhibit L - Form of Notice of Extension of Scheduled Maturity Date
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SCHEDULES
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Schedule 1.01 - Domestic Lending Offices and
Eurocurrency Lending Offices
Schedule 11.01(i) - Subsidiaries
Schedule 11.01(k) - Foreign Ancillary Obligations
Schedule 11.01(o) - Environmental Compliance
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EXECUTION COPY
THIRD AMENDED AND RESTATED
GLOBAL CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED GLOBAL CREDIT AGREEMENT, dated as of
December 20, 1994 among COMDISCO, INC., a Delaware corporation, the
subsidiaries of the Company from time to time party hereto as Multicurrency
Borrowers, the financial institutions from time to time party hereto as Banks,
the financial institutions from time to time party hereto as Tranche Agents,
the financial institutions from time to time party hereto as Issuing Banks,
NATIONSBANK OF NORTH CAROLINA, N.A., in its capacity as Bid Agent for the
Banks hereunder, and CITIBANK, N.A., in its capacity as Administrative Agent
for the Banks hereunder.
W I T N E S S E T H:
WHEREAS, the Company is party to the Second Amended Agreement;
WHEREAS, the parties hereto have agreed to amend and restate in its
entirety the Second Amended Agreement as hereinafter set forth; and
WHEREAS, it is the intent of the parties hereto that this Agreement
replace in its entirety the Second Amended Agreement, and that from and after
the Closing Date, the Second Amended Agreement be of no further force or
effect;
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, and of any loans or extensions of credit heretofore, now or
hereafter made to or for the benefit of the Company and the other
Multicurrency Borrowers by the Banks, the Issuing Banks and the Agents, the
parties hereto hereby agree as follows:
ARTICLE I
Section 1.01. Certain Defined Terms. The following terms used above and
elsewhere in this Agreement shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Acceleration Drawing" means a drawing under the Tranche E Letter of
Credit for the purpose of paying the Face Amount of all Series 1 CP Notes
(other than Delayed Notes) then outstanding, as provided in the Tranche E
Letter of Credit.
"Acceleration Notice" means a notice from the Administrative Agent
to the Tranche E Beneficiary, indicating that an Event of Default has
occurred and directing the Tranche E Beneficiary to make an Acceleration
Drawing under the Tranche E Letter of Credit. Each Acceleration Notice shall
be substantially in the form of Appendix II to the Tranche E Letter of
Credit.
"Accommodation Obligation", as applied to any Person, shall mean any
Contractual Obligation, contingent or otherwise, of that Person with respect
to any Debt or other obligation or liability of another, including, without
limitation, any such Debt, obligation or liability directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business), co-made or discounted or sold with recourse by
that Person, or in respect of which that Person is otherwise directly or
indirectly liable, including Contractual Obligations (contin-gent or
otherwise) arising through any agreement to purchase, repurchase, or
otherwise acquire such Debt, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether
in the form of loans, advances, stock purchases, capital contributions or
other-wise), or to maintain solvency, assets, level of income, liquidity or
other financial condition, or to make payment other than for value received.
"Administrative Agent" means Citibank in its separate capacity as
administrative agent for the Banks hereunder and shall include any successor
Administrative Agent appointed pursuant to Section 14.07.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person.
"Agent" means the Administrative Agent, the Bid Agent or any Tranche
Agent.
"Aggregate Material Amount" means, at any time, an amount equal to
the higher of (i) five percent (5%) of the Consolidated Tangible Net Worth of
the Company at such time and (ii) $25,000,000.
"Aggregate Pro Rata Share" shall mean, with respect to any Bank, a
fraction (expressed as a percentage), the numerator of which shall be the
then current amount of such Bank's Commitment and the denominator of which
shall be the then current Total Commitments, as adjusted from time to time in
accordance with the provisions of Section 15.06.
"Agreement" means this Third Amended and Restated Global Credit
Agreement, as the same may be amended, restated, supplemented or otherwise
modified from time to time in accordance with the terms hereof.
"Alternative Currency" means any lawful currency other than Dollars
which is freely transferable and convertible into Dollars.
"Applicable Lending Office" means, with respect to each Bank, (i)
such Bank's Domestic Lending Office in the case of a Base Rate Loan, (ii)
such Bank's Eurocurrency Lending Office in the case of a Eurocurrency Rate
Loan, and (iii) the office of such Bank notified by such Bank to the Bid
Agent as its applicable lending office in the case of a Bid Rate Loan.
"Applicable Pro Rata Share" means, with respect to any Bank at any
time, such Bank's Domestic Revolver Pro Rata Share, Multicurrency Revolver
Pro Rata Share or Aggregate Pro Rata Share at such time, as the case may be.
"Asian Ancillary Borrowers" has the meaning specified in Section
4.02(b).
"Asian Ancillary Lenders" has the meaning specified in Section
4.02(a).
"Asian Ancillary Loans" has the meaning specified in Section
4.02(a).
"Asian Ancillary Obligations" has the meaning specified in Section
4.02(a).
"Asian Beneficiaries" means The Bank of Tokyo and/or any one or more
Affiliates of The Bank of Tokyo, as the beneficiary or beneficiaries of the
Asian Letter of Credit.
"Asian Issuing Bank" means The Bank of Tokyo, in its capacity as the
issuer of the Asian Letter of Credit.
"Asian Letter of Credit" has the meaning specified in Section
4.01(a).
"Asian Reimbursement Obligations" has the meaning specified in
Section 4.03(b).
"Assignment and Acceptance" means an assignment and acceptance in
substantially the form of Exhibit K hereto pursuant to which a Bank assigns
all or a portion of such Bank's rights and obligations under this Agreement
in accordance with the terms of Section 15.06.
"Available Amount" means, for each Letter of Credit at any time, the
amount under such Letter of Credit available for drawing at such time by the
Beneficiary thereof.
"Banks" means each of the financial institutions party to this
Agreement and named on the signature pages hereof as a Bank or which becomes
a party to this Agreement pursuant to an Assignment and Acceptance from a
Bank in accordance with Section 15.06.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly by NationsBank in
Charlotte, North Carolina, from time to time, as NationsBank's prime rate; or
(b) one-half of one percent (1/2 of 1%) per annum above the
Federal Funds Rate.
"Base Rate Loan" means a Syndicated Loan which bears interest as
provided in Section 5.06(a).
"Beneficiary" means any of the European Beneficiaries, the Western
Pacific Beneficiaries, the Asian Beneficiaries or the Tranche E Beneficiary.
"Benefit Plan" means any employee benefit plan which is covered by
Title IV of ERISA or is subject to the minimum funding standards under
Section 412 of the Code (other than any Multiemployer Plan) and is maintained
or contributed to by the Company or any member of the Controlled Group.
"Bid Agent" means NationsBank in its separate capacity as bid agent
for the Banks under the auction bidding procedure described in Section 5.03,
and shall include any successor Bid Agent appointed pursuant to Section
14.07.
"Bid Rate Borrowing" means a borrowing consisting of simultaneous
Bid Rate Loans made to the Company from each of the Banks whose offer to make
a Bid Rate Loan as part of such borrowing has been accepted by the Company
under the applicable auction bidding procedure described in Section 5.03.
"Bid Rate Loan" means a loan by a Bank to the Company as part of a
Bid Rate Borrowing resulting from the application of the auction bidding
procedure described in Section 5.03.
"Bid Rate Note" means a promissory note of the Company payable to
the order of any Bank, in substantially the form of Exhibit I-1 hereto,
evidencing the Obligations of the Company to such Bank in respect of a Bid
Rate Loan.
"Bid Rate Reduction" has the meaning specified in the definition of
"Tranche D Commitment" herein.
"Borrowing" means a Syndicated Borrowing, a Bid Rate Borrowing or a
Multicurrency Borrowing, as the case may be.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City, Chicago, Illinois or
Charlotte, North Carolina and, if the applicable Business Day relates to any
Eurocurrency Rate Loans, on which dealings are carried on in the London
interbank market.
"Buy-Lease" means (a) any lease of any Equipment by the Company as
lessee, or (b) any conditional sale or similar arrangement providing for the
purchase of any Equipment by the Company and the retention by the seller
thereof of a Lien in such Equipment to secure the payment of amounts payable
thereunder by the Company.
"Certificate of Designation" means a certificate of the Company,
substantially in the form of Exhibit A-1, Exhibit B-1 or Exhibit C-1,
pursuant to which the Company designates itself or one of its foreign
subsidiaries as a European Ancillary Borrower, a Western Pacific Ancillary
Borrower or an Asian Ancillary Borrower, respectively.
"Citibank" means Citibank, N.A., a national banking association.
"Closing Date" means the date on which all of the conditions
precedent set forth in Section 10.01 are satisfied in full.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, together with the regulations
thereunder, in each case as in effect from time to time.
"Collateral Account" has the meaning specified in Section 13.02.
"Commercial Paper Dealer" means Smith Barney, Inc. and any other
dealer in commercial paper appointed by the Company to buy and sell the
Series 1 CP Notes with the prior written consent of the Tranche E Issuing
Bank.
"Commitment" means, for each Bank, the amount set forth opposite
such Bank's name under the heading "Commitment" on the signature pages hereof
or, if such Bank has entered into one or more Assignments and Acceptances,
set forth for such Bank in the Register, as such amount may be reduced or
otherwise adjusted from time to time pursuant to the terms of this Agreement.
"Company" means Comdisco, Inc., a Delaware corporation, and includes
its successors (including, without limitation, a receiver, trustee or
debtor-in-possession of or for the Company) and permitted assigns.
"Company Note" means a promissory note of the Company payable to the
order of any Bank, in substantially the form of Exhibit I-2 hereto,
evidencing the aggregate Obligations of the Company (other than Obligations
in respect of Bid Rate Loans and Multicurrency Loans) to such Bank.
"Compliance Certificate" means a certificate, substantially in the
form of Exhibit J hereto, executed by the Chief Executive Officer or Chief
Financial Officer or Controller of the Company, together with all schedules
annexed thereto.
"Contract" shall mean:
(a) any lease of any Equipment by the Company or any of its
Subsidiaries (in each case as lessor);
(b) any conditional sale or similar arrangement providing
for the sale by the Company or any of its Subsidiaries of any Equipment and
for the retention by the Company or such Subsidiary of a Lien in such
Equipment to secure the payment of amounts payable thereunder by the
purchaser thereof; or
(c) any note (and any related loan or other agreement)
evidencing a loan by the Company or any of its Subsidiaries to finance the
acquisition (including an acquisition theretofore made) of any Equipment and
secured by a Lien on such Equipment;
and "related Contract" means, when used with reference to any Equipment,
the Contract covering or secured by such Equipment.
"Contract Receivable" shall mean all amounts due and to become due
from time to time under each Contract from the Obligor thereunder to the
Company or one of its Subsidiaries, whether or not subject to any termination
or similar option, including, without limitation, (a) in the case of any
lease, all amounts payable as rental or pursuant to any purchase, renewal,
termination or other obligation or option of such Obligor, (b) in the case of
any conditional sale agreement or similar arrangement, all amounts payable as
purchase price (including interest) or pursuant to any other obligation or
option of such Obligor, and (c) in the case of any note evidencing a loan,
all amounts payable as principal and interest or pursuant to any other
obligation or option of such Obligor; and "related Contract Receivable" means
the Contract Receivable with respect to a specified Contract.
"Contractual Obligation", as applied to any Person, shall mean any
provision of any securities issued by that Person or any indenture, mortgage,
deed of trust, contract, undertaking, document, instrument or other agreement
or instrument to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject
(including, without limitation, any restrictive covenant affecting such
Person or any of its properties).
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414(b), 414(c) or 414(m) of the Code and Section
4001(a)(14) of ERISA.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Syndicated Loans of one Type into Syndicated Loans of another Type
pursuant to Section 5.07.
"CP Documents" means the Series 1 Depositary Agreement, the Dealer
Agreements, the Series 1 CP Notes, each CP Information Memorandum and all
other agreements, instruments and other documents executed in connection
therewith (including amendments and supplements thereto, but excluding the
Credit Documents), as such agreements, instruments and other documents have
been or may from time to time hereafter be amended, restated, supplemented or
otherwise modified.
"CP Information Memorandum" means each memorandum prepared by a
Commercial Paper Dealer in connection with the sale and distribution of the
Series 1 CP Notes.
"Credit Documents" means this Agreement, the Notes, the Letters of
Credit, guaranties and other agreements, instruments and written indicia of
Contractual Obligations between the Company or any of its Subsidiaries and
the Agents, the Banks or the Issuing Banks by or on behalf of the Company or
any of its Subsidiaries pursuant to or in connection with the transactions
contemplated hereby (but excluding any Foreign Ancillary Documents).
"Dealer Agreement" means any agreement, acceptable to the Tranche E
Issuing Bank and reasonably acceptable to the Administrative Agent, in each
case by and between the Company and a Commercial Paper Dealer with respect to
such Commercial Paper Dealer's purchase of Series 1 CP Notes.
"Debt" means, with respect to any Person, without duplication, (i)
all indebtedness, obligations or other liabilities of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, acceptances, notes or other similar instruments, (iii) all
reimbursement obligations and other liabilities of such Person with respect
to letters of credit issued for such Person's account, (iv) all obligations
of such Person to pay the deferred purchase price of property or services,
(v) all obligations of such Person as lessee under leases which shall have
been or should be, in accordance with GAAP, recorded on such Person's balance
sheet as capital leases, (vi) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any asset of such
Person, whether or not such indebtedness, obligations or liabilities are
assumed by or are a personal liability of such Person, and (vii) obligations
of such Person under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (vi)
above.
"Delayed Note" means any Series 1 CP Note which is not presented to
the Tranche E Beneficiary for payment within 15 calendar days after the
Stated Maturity Date thereof (or, if such day is not a Business Day, the next
succeeding Business Day).
"Dollar Equivalent" means, for an amount of any Alternative
Currency, the amount of Dollars which could be realized by converting such
amount of Alternative Currency into Dollars at the rate of exchange quoted
(i) solely with respect to Tranche F, by the Tranche F Agent pursuant to the
provisions of Article VII hereof, and (ii) otherwise by Citibank in New York
City, at 9:00 A.M. (New York time) on the date of determination, to prime
banks in New York City for the spot purchase in the New York foreign exchange
market of such amount of Dollars with such Alternative Currency.
"Dollars" and the sign "$" each means the lawful money of the United
States.
"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 1.01 hereto or in the Assignment and Acceptance pursuant to
which it became a Bank, or such other office of such Bank as such Bank may
from time to time specify to the Company, the Tranche D Agent and the
Administrative Agent.
"Domestic Revolver Pro Rata Share" means, with respect to any Bank
at any time, a fraction (expressed as a percentage), the numerator of which
shall be the then current amount of such Bank's Commitment (less, if such
Bank is a Multicurrency Bank, such Multicurrency Bank's Multicurrency
Revolver Pro Rata Share of the Tranche F Commitment at such time), and the
denominator of which shall be the then current Total Commitments less the
Tranche F Commitment at such time, as adjusted from time to time in
accordance with the provisions of Article VIII and Section 15.06.
"Eligible Contract" means any Contract which satisfies all of the
following requirements:
(a) the Obligor thereunder is not an Affiliate of the Company;
(b) the Company or a Subsidiary of the Company is (i) the
lawful owner of the Equipment subject to such Contract or (ii) if such
Contract is a sublease, the lessee of such Equipment or (iii) the holder of a
perfected security interest in such Equipment; and
(c) the related Obligor shall not have:
(i) asserted any then existing or potential offset,
counterclaim or other defense with respect to any amount due or to become due
under such Contract whether related to the Contract or otherwise,
(ii) failed (which failure is then continuing) to pay in
full any amount payable by it, or to perform fully any other obligation to be
performed by it, under such Contract within 90 days after such amount is due
and payable or such other obligation is to be performed, or
(iii) become insolvent, or generally failed to pay its
debts as they become due, or admitted in writing its inability or refusal to
pay its debts as they mature or consented to or acquiesced in the appointment
of a trustee, receiver or other custodian for it or any of its property; or,
in the absence of such application, consent or acquiescence, had a trustee,
receiver or other custodian appointed for such Obligor or for a substantial
part of its property; or had any bankruptcy, reorganization, debt arrangement
or other proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, instituted by or against such Obligor;
or taken any corporate action to authorize any of the foregoing; provided,
however, that any Contract which is not an Eligible Contract solely due to
the provisions of this clause (iii) shall become an Eligible Contract upon
affirmation of such Contract by the Obligor (or the trustee for or other
successor_in_interest to the Obligor) in an appropriate proceeding.
"Equipment" means tangible personal property (whether such tangible
personal property is defined as inventory, equipment or farm products under
the Illinois Uniform Commercial Code) used in business (i.e., used for any
purpose other than personal, family or household purposes); and "related
Equipment", when used with reference to any Contract, means the Equipment
subject to or securing such Contract.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" shall mean any (i) corporation which is a member
of the same controlled group of corpora-tions (within the meaning of Section
414(b) of the Code) as the Company; (ii) partnership, trade or business
(whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Code) with the Company; and (iii) member of
the same affiliated service group (within the meaning of Section 414(m) of
the Code) as the Company, any corporation described in clause (i) or any
partner-ship, trade or business described in clause (ii).
"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 1.01 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 or offices of such Bank as such Bank
may from time to time specify with reasonable prior notice to the Company,
the Tranche D Agent, the Tranche F Agent and the Administrative Agent. A
Multicurrency Bank may designate different offices as its "Eurocurrency
Lending Office" with respect to its Syndicated Loans and each Permitted
Currency under its Multicurrency Loans, and the term "Eurocurrency Lending
Office" shall refer to any or all such offices, collectively, as the context
may require when used in respect of such Multicurrency Bank.
"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, for any Interest Period for each
Eurocurrency Rate Loan comprising part of the same Borrowing, an interest
rate per annum equal to the average (rounded upward to the nearest whole
multiple of one-sixteenth of one percent (1/16 of 1%) per annum, if such
average is not such a multiple) of the rates per annum at which deposits in
Dollars or the relevant Permitted Currency are offered by the principal
office of each of the Reference Banks in London, England to prime banks in
the London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially equal
to such Reference Bank's Eurocurrency Rate Loan comprising part of such
Borrowing and for a period equal to such Interest Period. The Eurocurrency
Rate for any Interest Period for each Eurocurrency Rate Loan comprising part
of the same Borrowing shall be determined by the Tranche D Agent or the
Tranche F Agent, as applicable, on the basis of applicable rates furnished to
and received by such Agent from the Reference Banks two Business Days before
the first day of such Interest Period, subject, however, to the provisions of
Section 9.07.
"Eurocurrency Rate Loan" means either (i) a Multicurrency Loan or
(ii) a Syndicated Loan which bears interest as provided in Section 5.06(b).
"Eurocurrency Rate Reserve Percentage" of any Bank for any Interest
Period for any Eurocurrency Rate Loan means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable)
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 having a term
equal to such Interest Period.
"European Ancillary Borrowers" has the meaning specified in Section
2.02(b).
"European Ancillary Lenders" has the meaning specified in Section
2.02(a).
"European Ancillary Loans" has the meaning specified in Section
2.02(a).
"European Ancillary Obligations" has the meaning specified in
Section 2.02(a).
"European Beneficiaries" means Citibank and/or any one or more
Affiliates of Citibank, as the beneficiary or beneficiaries of the European
Letters of Credit.
"European Issuing Bank" means Citibank, in its capacity as the
issuer of the European Letters of Credit.
"European Letter of Credit" has the meaning specified in Section
2.01(a).
"European Reimbursement Obligations" has the meaning specified in
Section 2.03(b).
"Events of Default" has the meaning specified in Section 13.01.
"Face Amount" of any Series 1 CP Note means the face amount of such
Series 1 CP Note specified therein as the amount which is due and payable on
the Stated Maturity Date thereof.
"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 next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Tranche D Agent
from three Federal funds brokers of recognized standing selected by it.
"Fiscal Year" means a fiscal year of the Company.
"Fixed Rate Auction" has the meaning specified in Section
5.03(b)(i).
"Foreign Ancillary Documents" means any agreements, instruments or
other documents evidencing Foreign Ancillary Loans or otherwise executed in
connection therewith.
"Foreign Ancillary Lender" means any European Ancillary Lender,
Asian Ancillary Lender or Western Pacific Ancillary Lender.
"Foreign Ancillary Loans" means any or all of the European Ancillary
Loans, the Asian Ancillary Loans or the Western Pacific Ancillary Loans.
"Foreign Ancillary Obligations" means, collectively, the European
Ancillary Obligations, the Asian Ancillary Obligations and the Western
Pacific Ancillary Obligations.
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States, as set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such
other entities as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the
date of determination.
"Government Acts" has the meaning specified in Section 9.12(a).
"Governmental Authority" shall mean any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indexed Rate Auction" has the meaning specified in Section
5.03(b)(i).
"Individual Material Amount" means, at any time, an amount equal to
the higher of (i) two percent (2%) of the Consolidated Tangible Net Worth of
the Company at such time and (ii) $10,000,000.
"Interest Period" means, for each Eurocurrency Rate Loan comprising
part of the same Borrowing, the period commencing on the date of the making
or the Conversion of a Loan into such Loan and ending on the last day of the
period selected by the Company (on behalf of itself or another Multicurrency
Borrower, as the case may be) pursuant to the provisions below. Each such
Interest Period shall be a period of one, two, three, six or nine months, as
the Company may select (on behalf of itself or another Multicurrency
Borrower, as the case may be) pursuant to the terms of this Agreement;
provided, however, that:
(a) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(b) 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;
(c) the Company may not select an Interest Period of nine
months for Multicurrency Loans; and
(d) the last day of each Interest Period shall be on or before
the Scheduled Maturity Date then in effect.
"Issuing Bank" means any of the European Issuing Bank, the Asian
Issuing Bank, the Western Pacific Issuing Bank or the Tranche E Issuing Bank.
"Issuing Bank Acceptance Certificate" means a certificate in
substantially the form of Exhibit E-1 hereto, pursuant to which a financial
institution agrees to become the Tranche E Issuing Bank in accordance with
the terms of Section 6.01(e)(iv).
"Letter of Credit" means any of the European Letters of Credit, the
Western Pacific Letters of Credit, the Asian Letters of Credit or the Tranche
E Letter of Credit.
"Letter of Credit Tranche" means any of Tranche A, Tranche B,
Tranche C or Tranche E, and "Letter of Credit Tranches" means all such
tranches.
"Letter of Credit Tranche Commitments" means, collectively, the
Tranche A Commitment, the Tranche B Commitment, the Tranche C Commitment and
the Tranche E Commitment.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, collateral deposit arrange-ment, security
interest, encumbrance (including, but not limited to, easements, rights of
way, zoning restrictions, restrictive covenants and the like), lien
(statutory or other), preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, the
interest of a lessor under a lease which has been or should be (in accordance
with GAAP) recorded on the lessor's balance sheet as a capital lease, and the
filing of any financing statement (other than a financing statement filed by
a "true" lessor pursuant to 9-408 of the Uniform Commercial Code or an
equivalent statute) naming the Company or any of its Subsid-iaries as owner
of the collateral to which such Lien relates as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Limited Recourse Obligation" means any obligation of the Company or
any of its Subsidiaries with respect to which a portion, but not all, of the
Company's or such Subsidiary's liability thereunder constitutes a
Non-Recourse Obligation.
"Loan" means any Syndicated Loan, Bid Rate Loan or Multicurrency
Loan, as the case may be.
"Majority Banks" means Banks whose Voting Pro Rata Shares aggregate
to more than 50%.
"Material Subsidiary" means any Subsidiary of the Company which
either (i) has total assets, determined in accordance with GAAP, of at least
$20,000,000 at the time of such calculation or (ii) has net cash provided by
continuing operations (determined, for any fiscal quarter, in accordance with
GAAP) which constitutes five percent (5%) or more of the consolidated net
cash provided by continuing operations of the Company and its Subsidiaries;
it being understood that once a Subsidiary of the Company is a Material
Subsidiary it shall remain as such for the purposes of this Agreement
notwithstanding any subsequent decrease in its total assets or net cash
provided by continuing operations; provided, that if a Material Subsidiary no
longer satisfies either condition set forth above and the Board of Directors
of the Company determines that such Subsidiary is not material to the
consolidated financial condition or operations of the Company and its
Subsidiaries, then for so long as such Subsidiary satisfies neither such
condition, such Subsidiary shall not be a Material Subsidiary.
"Maturity Drawing" means a drawing under the Tranche E Letter of
Credit for the purpose of paying the Face Amount of maturing Series 1 CP
Notes as provided in the Tranche E Letter of Credit.
"MOF" means collectively, (i) that certain Facility Agreement dated
as of June 4, 1991 among the Company, National Westminster Bank PLC, Barclays
Bank PLC and the banks from time to time party thereto, as the same has been
and may from time to time hereafter be amended, restated, supplemented or
otherwise modified, and (ii) that certain Facility Agreement dated as of
December 30, 1994 among the Company, National Westminster Bank PLC, Barclays
Bank PLC and the banks from time to time party thereto, as the same has been
and may from time to time hereafter be amended, restated, supplemented or
otherwise modified.
"Multicurrency Banks" means each of the financial institutions party
to this Agreement and named as a Multicurrency Bank on the signature pages
hereof or which becomes a party to this Agreement pursuant to an Assignment
and Acceptance from a Multicurrency Bank in accordance with Section 15.06.
"Multicurrency Borrower" means each of (i) the Company, (ii)
Promodata S.A., a company organized under the laws of France (subject to
receipt by the Administrative Agent and the Tranche F Agent of a
Multicurrency Borrower Assumption Agreement, duly executed on behalf of
Promodata S.A. and the Company), and (iii) each wholly-owned Subsidiary of
the Company (a) which is organized under the laws of Great Britain, France,
Germany, Switzerland or the United States and (b) as to which a Multicurrency
Borrower Assumption Agreement shall have been delivered to the Administrative
Agent and the Tranche F Agent, duly executed on behalf of such Multicurrency
Borrower and the Company, prior to the date of any Notice of Multicurrency
Borrowing delivered on behalf of such Multicurrency Borrower; provided, that
Promodata S.A. shall be entitled to borrow Multicurrency Loans hereunder only
so long as it remains a Subsidiary of the Company.
"Multicurrency Borrower Assumption Agreement" means a Multicurrency
Borrower Assumption Agreement in substantially the form of Exhibit F-1
hereto.
"Multicurrency Borrowing" means a borrowing consisting of
simultaneous Multicurrency Loans made to a single Multicurrency Borrower by
each of the Multicurrency Banks pursuant to Section 7.01.
"Multicurrency Loan" means a loan by a Multicurrency Bank to a
Multicurrency Borrower pursuant to Section 7.01.
"Multicurrency Note" means a promissory note of a Multicurrency
Borrower payable to the order of any Multicurrency Bank, in substantially the
form of Exhibit I-3 hereto, evidencing the aggregate Obligations of such
Multicurrency Borrower to such Multicurrency Bank.
"Multicurrency Revolver Pro Rata Share" means, with respect to any
Multicurrency Bank at any time, a fraction (expressed as a percentage), the
numerator of which shall be the then current amount of such Multicurrency
Bank's Commitment, and the denominator of which shall be the then current
aggregate Commitments of the Multicurrency Banks, as adjusted from time to
time in accordance with the provisions of Section 15.06.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is contributed to by the Company or any
member of the Controlled Group.
"NationsBank" means NationsBank of North Carolina, N.A., a national
banking association.
"Non-Recourse Obligation" means any obligation of the Company or any
of its Subsidiaries incurred to finance any Equipment or the purchase or
lease thereof which is secured by a Lien on (and only on) such Equipment, any
related Contract, the related Contract Receivable, proceeds of insurance
covering such Equipment, any insurance policy from insureds which are not
affiliated with the Company insuring a portion of the related Contract
Receivable, or any combination of the foregoing, but only if:
(a) such Non_Recourse Obligation is payable solely out of
the security therefor;
(b) neither the Company nor any Subsidiary of the Company
in any respect guarantees or otherwise becomes responsible for the
performance of any warranty or agreement of the Obligor under any related
Contract; and
(c) neither the Company nor any Subsidiary of the Company
has any liability in connection with such Non-Recourse Obligation, except for
warranties as to genuineness of signatures, the Company's or such
Subsidiary's title to or interest in the related Equipment and similar
warranties as not being inconsistent with a non-recourse obligation with
respect to such Equipment and the related Contract.
"Non-Recourse Subsidiary" means any Subsidiary of the Company where
(i) all of the assets of such Subsidiary were acquired and all of the Debts
of such Subsidiary were incurred in a single transaction, (ii) all Debts of
such Subsidiary constitute claims only against such Subsidiary, and (iii)
neither the Company nor any other Subsidiary of the Company shall have
incurred any Accommodation Obligations with respect to any Debts of such
Subsidiary.
"Note" means a Bid Rate Note, a Company Note or a Multicurrency
Note.
"Notice of Bid Rate Borrowing" has the meaning specified in Section
5.03(b)(i).
"Notice of Conversion" has the meaning specified in Section 5.07(b).
"Notice of Multicurrency Borrowing" has the meaning specified in
Section 7.02(a).
"Notice of Reallocation" has the meaning specified in Section
8.01(a).
"Notice of Syndicated Borrowing" has the meaning specified in
Section 5.02(a).
"Notice of Termination" means a certificate from the Company and the
Tranche E Beneficiary to the Tranche E Issuing Bank, substantially in the
form of Appendix I to the Tranche E Letter of Credit, directing that the
Tranche E Letter of Credit be terminated in accordance with its terms.
"Obligations" means all present and future Debt and other
liabilities of the Company and any other Subsidiary of the Company
(including, without limitation, any other Multicurrency Borrower) under any
of the Credit Documents owing to any Agent, any Bank, any Issuing Bank, or
any Person entitled to indemnification pursuant to Section 15.04, or any of
their respective successors, transferees or assigns, of every type and
description, arising under or in connection with this Agreement, the Notes or
any other Credit Document or the transactions contemplated hereby or
thereby, whether or not for the payment of money, whether arising by reason
of any extension of credit, opening or amendment of any Letter of Credit or
payment of any draft drawn thereunder, any loan, guaranty, indemnification,
or in any other manner, whether direct or indirect (including those acquired
by assignment), absolute or contingent, due or to become due, now existing
or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements and any other sum chargeable to the Company and the other
Multicurrency Borrowers under this Agreement, the Notes or any other Credit
Document.
"Obligor" means the lessee, purchaser or borrower under a Contract.
"Permitted Currency" means any of the lawful currencies of Great
Britain (British pounds sterling), France (French francs), Germany
(Deutschmarks), Switzerland (Swiss francs), or the United States (Dollars).
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"Plan" means any employee benefit plan defined in Section 3(3) of
ERISA in respect of which the Company or any member of the Controlled Group
is, or within the immediately preceding five years was, an "employer" as
defined in Section 3(5) of ERISA.
"Reduction Certificate" means a certificate, substantially in the
form of Appendix VII to the Tranche E Letter of Credit, executed by the
Company and acknowledged by the Tranche E Beneficiary and delivered to the
Administrative Agent and the Tranche E Issuing Bank, all in accordance with
the terms of Section 8.01(c)(iii).
"Reallocation" has the meaning specified in Section 8.01(a).
"Reallocation Effective Date" has the meaning specified in Section
8.01(a).
"Reference Banks" means Citibank and NationsBank (or, if applicable,
an Affiliate in either case thereof), and shall include their respective
successors.
"Register" has the meaning specified in Section 15.06(c).
"Reimbursement Obligations" means any or all of the European
Reimbursement Obligations, the Asian Reimbursement Obligations, the Western
Pacific Reimbursement Obligations and/or the Tranche E Reimbursement
Obligations.
"Request for Change in Stated Amount" means a certificate,
substantially in the form of Appendix V to the Tranche E Letter of Credit,
and executed by the Company and delivered to the Administrative Agent and the
Tranche E Issuing Bank, all in accordance with the terms of Section
8.01(c)(iii).
"Requirements of Law" shall mean, as to any Person, the charter and
by-laws or other organizational or governing documents of such Person, and
any law, rule or regulation, or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property
is subject, including, without limitation, the Securities Act of 1933, the
Securities Exchange Act of 1934, Regulations G, U and X of the Board of
Governors of the Federal Reserve System, and any certificate of occupancy,
zoning ordinance, building, environmental or land use requirement, approval,
permit or license or occupational safety or health law, rule or regula-tion.
"Sale and Leaseback" has the meaning specified in Section 12.03(d).
"Scheduled Maturity Date" means December 31, 1997, as such date may
be extended pursuant to Section 15.07.
"Second Amended Agreement" means that certain Second Amended and
Restated Global Credit Agreement dated as of September 30, 1993 among the
Company, the financial institutions from time to time party thereto, and
Citibank and NationsBank, as co-agents and co-arrangers thereunder, as the
same has been amended, supplemented or otherwise modified from time to time
prior to the Closing Date.
"Senior Unsecured Indebtedness" means all unsecured Debt of the
Company other than Subordinated Debt.
"Series 1 Commercial Paper Account" has the meaning specified in
Section 6.03(b).
"Series 1 CP Notes" has the meaning specified in Section 6.02(a).
"Series 1 Depositary Agreement" means that certain amended and
restated letter agreement dated October 22, 1993 from the Company to the
Tranche E Beneficiary and acknowledged by the Administrative Agent and the
Tranche E Issuing Bank, together with all exhibits, schedules, attachments
and appendices thereto, as the same may from time to time be amended,
restated, supplemented or otherwise modified in accordance with the terms
hereof.
"Series 1 Letter of Credit Account" has the meaning specified in
Section 6.03(c).
"Series 1 Special Account" has the meaning specified in Section
6.03(a).
"Stated Amount" means, at any time for each Letter of Credit, the
maximum aggregate amount under such Letter of Credit available for drawing at
such time by the Beneficiary thereof (as such amount may be changed or
reinstated in accordance with the terms hereof and thereof).
"Stated Maturity Date" means, for any Series 1 CP Note, the date on
which the Face Amount thereof is due and payable.
"Subordinated Debt" means any Debt of the Company or any Subsidiary
of the Company for money borrowed which is expressed to be subordinate to any
other Debt of the Company or such Subsidiary.
"Subsidiary" of a Person means any corporation, partnership (limited
or general), trust or other entity of which a majority of the stock (or
equivalent ownership or controlling interest) having voting power to elect a
majority of the Board of Directors (if a corporation) or to select the
trustee or equivalent controlling interest, shall, at the time such reference
becomes operative, be directly or indirectly owned or controlled by such
Person or one or more of the other Subsidiaries of such Person or any
combination thereof.
"Syndicated Borrowing" means a borrowing consisting of simultaneous
Syndicated Loans of the same Type (and, if Eurocurrency Rate Loans, having
the same Interest Period) made to the Company by the Banks pursuant to
Section 5.01, or Converted pursuant to Section 5.07.
"Syndicated Loan" means a loan by a Bank to the Company pursuant to
Section 5.01, and refers to either a Base Rate Loan or a Eurocurrency Rate
Loan (each of which shall be a "Type" of Loan).
"Termination Date" means the earlier of the Scheduled Maturity Date
or the date of the termination in whole of the Tranche D Commitment and the
Tranche F Commitment pursuant to Section 13.02.
"The Bank of Tokyo" means The Bank of Tokyo, Ltd., a banking
corporation organized under the laws of Japan.
"Total Commitments" means the aggregate principal amount of the
Commitments of all of the Banks, the maximum amount of which shall be Three
Hundred Million Dollars ($300,000,000) (as such amount may from time to time
be increased in accordance with the terms of Section 15.24 hereof).
"Tranche" means any of Tranche A, Tranche B, Tranche C, Tranche D,
Tranche E or Tranche F.
"Tranche A" means the tranche subfacility provided to the Company
pursuant to Article II.
"Tranche A Agent" means Citibank in its capacity as agent under
Tranche A, and includes any successor Tranche A Agent appointed pursuant to
Section 14.07.
"Tranche A Commitment" means the aggregate obligation of the Banks
to participate in the European Letters of Credit pursuant to the terms of
this Agreement, and shall on the Closing Date be in an amount equal to
Forty-Five Million Dollars ($45,000,000), as such amount may from time to
time be adjusted in accordance with the terms of this Agreement.
"Tranche Agents" means the Tranche A Agent, the Tranche B Agent, the
Tranche C Agent, the Tranche D Agent, the Tranche E Agent and the Tranche F
Agent.
"Tranche B" means the tranche subfacility provided to the Company
pursuant to Article III.
"Tranche B Agent" means Westpac in its capacity as agent under
Tranche B, and includes any successor Tranche B Agent appointed pursuant to
Section 14.07.
"Tranche B Commitment" means the aggregate obligation of the Banks
to participate in the Western Pacific Letters of Credit pursuant to the terms
of this Agreement, and shall on the Closing Date be in an amount equal to
Thirty-Six Million Dollars ($36,000,000), as such amount may from time to
time be adjusted in accordance with the terms of this Agreement.
"Tranche C" means the tranche subfacility provided to the Company
pursuant to Article IV.
"Tranche C Agent" means The Bank of Tokyo in its capacity as agent
under Tranche C, and includes any successor Tranche C Agent appointed
pursuant to Section 14.07.
"Tranche C Commitment" means the aggregate obligation of the Banks
to participate in the Asian Letters of Credit pursuant to the terms of this
Agreement, and shall on the Closing Date be in an amount equal to Thirty-Five
Million Dollars ($35,000,000), as such amount may from time to time be
adjusted in accordance with the terms of this Agreement.
"Tranche Commitment" means the Tranche A Commitment, the Tranche B
Commitment, the Tranche C Commitment, the Tranche D Commitment, the Tranche E
Commitment or the Tranche F Commitment.
"Tranche D" means the tranche subfacility provided to the Company
pursuant to Article V.
"Tranche D Agent" means NationsBank in its capacity as agent under
Tranche D, and includes any successor Tranche D Agent appointed pursuant to
Section 14.07.
"Tranche D Commitment" means the aggregate obligation of the Banks
to make Syndicated Loans pursuant to the terms of this Agreement, and shall
on the Closing Date be in an amount equal to Eighty-Four Million Dollars
($84,000,000), as such amount may from time to time be adjusted in accordance
with the terms of this Agreement; provided, that the Tranche D Commitment
shall be deemed used from time to time to the extent of the aggregate amount
of the Bid Rate Loans then outstanding and such deemed use of the Tranche D
Commitment shall be applied to the Banks ratably according to their Domestic
Revolver Pro Rata Shares at such time (such deemed use of the Tranche D
Commitment being a "Bid Rate Reduction").
"Tranche E" means the tranche subfacility provided to the Company
pursuant to Article VI.
"Tranche E Agent" means NationsBank in its capacity as agent under
Tranche E, and includes any successor Tranche E Agent appointed pursuant to
Section 14.07.
"Tranche E Beneficiary" means Citibank, as the beneficiary of the
Tranche E Letter of Credit and as the depositary and issuing and paying agent
under the Series 1 Depositary Agreement, and includes any successor
Beneficiary appointed in accordance with the terms hereof.
"Tranche E Commitment" means, subject to the proviso below, the
aggregate obligation of the Banks to participate in the Tranche E Letter of
Credit pursuant to the terms of this Agreement, which shall on the Closing
Date be in an amount equal to One-Hundred Million Dollars ($100,000,000), as
such amount may from time to time be adjusted in accordance with the terms of
this Agreement; provided, however, that the obligation of the Banks to
participate in automatic reinstatements of the Tranche E Letter of Credit
following a draw thereunder shall, prior to reimbursement therefor by the
Company, be excluded from the numerical amount of the Tranche E Commitment.
"Tranche E Issuing Bank" means NationsBank, in its capacity as
issuer of the Tranche E Letter of Credit, or such other Person as may become
the issuer thereof in accordance with the provisions of this Agreement.
"Tranche E Letter of Credit" has the meaning specified in Section
6.01(a).
"Tranche E Reimbursement Obligations" has the meaning specified in
Section 6.06(c).
"Tranche F" means the tranche subfacility provided to the Company
and the other Multicurrency Borrowers pursuant to Article VII.
"Tranche F Agent" means Citibank International plc in its capacity
as agent under Tranche F, and includes any successor Tranche F Agent
appointed pursuant to Section 14.07.
"Tranche F Commitment" means the aggregate obligation of the
Multicurrency Banks to make Multicurrency Loans pursuant to the terms of this
Agreement, and shall on the Closing Date be in an amount equal to Zero
Dollars ($0), as such amount may from time to time be adjusted in accordance
with the terms of this Agreement; provided, that at no time may the Tranche F
Commitment exceed the aggregate Commitments of the Multicurrency Banks at
such time.
"Type" has the meaning specified in the definition of "Syndicated
Loan" herein.
"Unmatured Event of Default" means any event or condition which,
with the passage of time or the giving of notice or both, would constitute an
Event of Default.
"Voting Pro Rata Share" shall mean, with respect to any Bank, a
fraction (expressed as a percentage):
(i) at any time prior to the termination of the Tranche D
Commitment and the Tranche F Commitment, the numerator of which shall be the
Commitment of such Bank and the denominator of which shall be the Total
Commitments at such time;
(ii) at any time following the termination of the Tranche D
Commitment and the Tranche F Commitment and so long as any Syndicated Loans
or Multicurrency Loans remain outstanding, the numerator of which shall be
the sum of the aggregate outstanding Syndicated Loans and Multicurrency Loans
of such Bank plus such Bank's outstanding Commitments under the Letter of
Credit Tranches, and the denominator of which shall be the aggregate
outstanding Syndicated Loans, Multicurrency Loans and Commitments under the
Letter of Credit Tranches of all of the Banks at such time; and
(iii) at any time following the termination of the Tranche D
Commitment and the Tranche F Commitment if no Syndicated Loans or
Multicurrency Loans remain outstanding, the numerator of which shall be the
sum of the aggregate outstanding Bid Rate Loans of such Bank plus such Bank's
outstanding Commitments under the Letter of Credit Tranches, and the
denominator of which shall be the aggregate outstanding Bid Rate Loans and
Commitments under the Letter of Credit Tranches of all of the Banks at such
time.
"Western Pacific Ancillary Borrower" has the meaning specified in
Section 3.02(b).
"Western Pacific Ancillary Lenders" has the meaning specified in
Section 3.02(a).
"Western Pacific Ancillary Loans" has the meaning specified in
Section 3.02(a).
"Western Pacific Ancillary Obligations" has the meaning set forth in
Section 3.02(a).
"Western Pacific Beneficiaries" means Westpac and/or any one or more
Affiliates of Westpac, as the beneficiary or beneficiaries of the Western
Pacific Letter of Credit.
"Western Pacific Issuing Bank" means Westpac, in its capacity as the
issuer of the Western Pacific Letter of Credit.
"Western Pacific Letter of Credit" has the meaning specified in
Section 3.01(a).
"Western Pacific Reimbursement Obligations" has the meaning
specified in Section 3.03(b).
"Westpac" means Westpac Banking Corporation, a banking corporation
organized under the laws of the State of New South Wales in the Commonwealth
of Australia.
Section 1.02. Other Definitions. (a) The following terms, used in this
Agreement in connection with the calculation of the financial covenants
hereunder, have the meanings specified in the Compliance Certificate:
"Fixed Charge Coverage Ratio"
"Net Book (or Residual) Value"
"Net Cash Provided by Operating Activities Ratio"
"Ratio of Unencumbered Cash Flow to
Contractual Payments"
"Recourse Liabilities Ratio"
"Remarketing Revenues"
"Total Liabilities to Adjusted Net Worth Ratio"
(b) The following terms, used in this Agreement in connection with
the calculation of the financial covenants hereunder, shall have the following
meanings:
"Consolidated Net Income" has the meaning given to such term in
accordance with GAAP.
"Consolidated Tangible Net Worth" means, at any time, the
consolidated capital (including in excess of par value) and retained earnings
of the Company and its Subsidiaries (excluding, however, the deferred
translation adjustment, if any, to the Company's shareholders' equity) less
all franchises, patents, patent applications, trademarks, goodwill, research
and development expense, the after_tax effect of unamortized debt discount
and any other unamortized debt expense, and other intangibles, calculated in
accordance with Schedule 1 to the Compliance Certificate.
"Cumulative Net Losses" means net losses exclusive of losses arising
from the scheduled amortization or write-off of intangible assets (determined
in connection with the computation of Consolidated Net Income) as calculated
in accordance with Section 12.04 and Schedule 7 to the Compliance
Certificate.
"Earnings from Continuing Operations Before Taxes" means the
earnings from continuing operations of the Company and its Subsidiaries
before any adjustments for or on account of any income taxes, exclusive of
any earnings or losses arising from the scheduled amortization or write-off
of intangible assets.
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 means "to but
excluding".
Accounting Terms. All accounting terms not specifically defined herein shall
be construed in accordance with GAAP in a manner consistent with the
preparation of the financial statements referred to in Section 12.02(a).
Other Definitional Provisions. References to "Articles," "Sections,"
"subsections," "Schedules" and "Exhibits" shall be to Articles, Sections,
subsections, Schedules and Exhibits, respectively, of this Agreement unless
otherwise specifically provided. As used in this Agreement, singular terms
shall include the plural and plural terms shall include the singular unless
the context otherwise requires, and terms importing any gender shall include
the other gender.
ARTICLE II
Section 2.01. The European Letters of Credit. (a) In connection with
the Second Amended Agreement, the European Issuing Bank has issued, or,
subject to the terms and conditions of this Agreement, the European Issuing
Bank shall, on the Closing Date, issue, one or more irrevocable, transferable
letters of credit each in substantially the form of Exhibit A attached hereto
in favor of the European Beneficiaries, which letter or letters of credit
(after giving effect to any amendments thereof as of the Closing Date) shall
be in the aggregate amount of the Tranche A Commitment and shall expire on
the Scheduled Maturity Date (each such letter of credit and any successor
letter of credit as provided herein and therein being a "European Letter of
Credit" and, collectively, the "European Letters of Credit").
(b) The aggregate Stated Amount of the European Letters of Credit
shall at all times be equal to the Tranche A Commitment as in effect from time
to time.
(c) The Available Amount of each European Letter of Credit shall be
reduced automatically by the Dollar Equivalent of the amount of each drawing
honored thereunder (as calculated on the day of payment by the European
Issuing Bank with respect thereto), and, so long as no Event of Default or
Unmatured Event of Default shall have occurred and be continuing, shall be
reinstated in the same amount upon reimbursement by the Company in full for
such draw.
(d) Subject to the terms of this Agreement, the European Letters of
Credit may be amended or replaced from time to time (i) as a result of a
reallocation of the Tranche A Commitment pursuant to Article VIII hereof, (ii)
as a result of an extension of the Scheduled Maturity Date pursuant to Section
15.07 hereof, and (iii) as otherwise agreed to by the Company, the
Administrative Agent, the European Issuing Bank and the Tranche A Agent
(provided, that each European Letter of Credit shall in all events remain in
substantially the form of Exhibit A attached hereto).
Section 2.02. European Ancillary Loans. (a) The European Letters of Credit
shall support loans and other financial accommodations (each a "European
Ancillary Loan" and, collectively, the "European Ancillary Loans") made by
European or Canadian branches, Subsidiaries or Affiliates (each a "European
Ancillary Lender" and, collectively, the "European Ancillary Lenders") of the
European Issuing Bank to the European Ancillary Borrowers. Each European
Ancillary Loan:
(i) shall have an expiration date which (1) is no more than twelve
(12) months after the date such European Ancillary Loan is made (provided,
that the applicable European Ancillary Lender and European Ancillary Borrower
may agree to additional terms each not to exceed twelve (12) months so long
as such agreement is made no earlier than the thirtieth (30th) day before the
end of the preceding term) and (2) is on or before the Scheduled Maturity
Date then in effect; and
(ii) may, at the option of the applicable European Ancillary Lender
and European Ancillary Borrower, be made in any Alternative Currency.
In the event that the Dollar Equivalent, as calculated on any day, of all of
the unpaid principal of, interest on, and fees, expenses and other amounts
owing under or in connection with the European Ancillary Loans (collectively,
the "European Ancillary Obligations") shall at any time exceed the Tranche A
Commitment as in effect on such day, the Company (i) shall cause the European
Ancillary Borrowers to either (1) make such payments or prepayments of the
European Ancillary Obligations (together with all costs, expenses, indemnified
amounts and other amounts due as a result of such payment or prepayment to the
applicable European Ancillary Lender) necessary to eliminate such excess or
(2) provide the European Ancillary Lenders with cash collateral in the amount
of such excess, and (ii) to the extent the European Ancillary Borrowers do not
make such payments or repayments or provide such cash collateral, hereby
absolutely and unconditionally guarantees the immediate repayment of such
excess to the Tranche A Agent for the account of the European Ancillary
Lenders.
(b) The European Ancillary Loans shall be made by the European
Ancillary Lenders to the Company and/or those Subsidiaries of the Company
located in Europe and Canada (each a "European Ancillary Borrower" and,
collectively, the "European Ancillary Borrowers") designated from time to time
by the Company by delivery to the Tranche A Agent, for each such European
Ancillary Borrower, of a Certificate of Designation substantially in the form
of Exhibit A-1 hereto. Each Certificate of Designation (other than those
Certificates of Designation delivered on the Closing Date) must be delivered
at least five (5) Business Days prior to the making of the first European
Ancillary Loan to the applicable European Ancillary Borrower, and any loans
made prior to such date shall not constitute European Ancillary Loans
hereunder. The Company shall deliver to the Tranche A Agent written notice of
any European Ancillary Borrower which shall no longer borrow European
Ancillary Loans promptly after the repayment of all European Ancillary
Obligations of such European Ancillary Borrower and the termination of all
instruments and documents evidencing European Ancillary Loans to such European
Ancillary Borrower. Upon receipt by the Tranche A Agent of the notice
described in the preceding sentence, the Certificate of Designation for the
applicable European Ancillary Borrower shall be deemed withdrawn, and such
European Ancillary Borrower shall cease to be a European Ancillary Borrower
hereunder.
SECTION 2.03. Payments Under the European Letters of Credit;
Payments Under the European Letters of Credit; Reimbursement Obligations.
(a) In the event of any conforming drawing under a European Letter of Credit
prior to 1:00 P.M. (New York time) on a Business Day, the European Issuing
Bank shall make payment thereof to the applicable European Beneficiary or
Beneficiaries by the close of business on the second Business Day after the
receipt of such drawing. Any drawing received after 1:00 P.M. (New York time)
on a Business Day shall be deemed to have been received by the European
Issuing Bank on the next Business Day. The European Issuing Bank shall give
the Company prompt telephonic notice, confirmed promptly thereafter in
writing, of each such drawing under such European Letter of Credit; provided,
however, that failure by the European Issuing Bank to so notify the Company,
or failure by the Company to receive such notice, shall not in any manner
whatsoever (i) alter the Company's obligations, or the rights of the European
Issuing Bank or of any Bank, hereunder, or (ii) impose any liability of any
sort on the European Issuing Bank or any Bank, or (iii) alter the European
Issuing Bank's obligations under the European Letters of Credit to the
European Beneficiaries.
(b) With respect to any drawing under a European Letter of Credit,
the Company shall pay to the European Issuing Bank, in immediately available
funds and in the appropriate Alternative Currency, an amount equal to the
amount of such drawing no later than 10:00 A.M. (New York time) on the
Business Day on which payment of such drawing is required to be made by the
European Issuing Bank. The obligation of the Company to pay the European
Issuing Bank under this Section 2.03(b) for any draw under a European Letter
of Credit (each, a "European Reimbursement Obligation" and collectively, the
"European Reimbursement Obligations") shall bear interest from the date of the
applicable payment by the European Issuing Bank at a per annum rate of
interest equal to the Base Rate plus two percent (2%).
Section 2.04. Participations. (a) As of the Closing Date, each Bank shall
irrevocably and unconditionally purchase and receive from the European
Issuing Bank, without recourse or warranty, an undivided interest and
participation to the extent of such Bank's Aggregate Pro Rata Share in the
European Letters of Credit and the European Reimbursement Obligations
(including, without limitation, all obligations of the Company in each case
with respect thereto, other than amounts owing to the European Issuing Bank
under Sections 9.04, 9.05 and 9.06(b)).
(b) In the event that the European Issuing Bank makes any payment
under a European Letter of Credit and the Company shall not have paid such
amount to the European Issuing Bank in accordance with Section 2.03(b), the
European Issuing Bank shall promptly notify the Administrative Agent, which
shall promptly notify each Bank, of such failure, and each Bank shall promptly
and unconditionally pay to the Administrative Agent for the account of the
European Issuing Bank the amount of such Bank's Aggregate Pro Rata Share of
the Dollar Equivalent (measured as of the date payment is made by the European
Issuing Bank) of such payment in Dollars and in same day funds and the
Administrative Agent shall promptly pay such amount, and any other amounts
received by the Administrative Agent for the European Issuing Bank's account
pursuant to this Section 2.04(b), to the European Issuing Bank. If the
Administrative Agent so notifies such Bank prior to 11:00 A.M. (New York time)
on any Business Day, such Bank shall make available to the Administra-tive
Agent for the account of the European Issuing Bank its Aggregate Pro Rata
Share of the amount of such payment in same day funds not later than 2:00 P.M.
(New York time) on such Business Day (or by the close of business on such
Business Day if notice is given after 11:00 A.M. (New York time) but before
2:00 P.M. (New York time), and on the next succeeding Business Day if notice
is given after 2:00 P.M. (New York time)). If and to the extent such Bank
shall not have so made its Aggregate Pro Rata Share of the amount of such
payment available to the Administrative Agent for the account of the European
Issuing Bank, such Bank agrees to pay to the Administrative Agent for the
account of the European Issuing Bank forthwith on demand such amount together
with interest thereon, for each day from the date such payment was first due
until such amount is paid to the Administrative Agent for the account of the
European Issuing Bank, at the Federal Funds Rate. The failure of any Bank to
make available to the Administrative Agent for the account of the European
Issuing Bank its Aggregate Pro Rata Share of any such payment shall not
relieve any other Bank of its obligation here-under to make available to the
Administrative Agent for the account of the European Issuing Bank its
Aggregate Pro Rata Share of any payment on the date such payment is to be
made.
(c) Upon payment by one or more Banks under this Section 2.04 in
connection with a drawing under a European Letter of Credit, the European
Reimbursement Obligations with respect to such drawing shall be (i)
denominated in Dollars in an amount equal to the Dollar Equivalent of the
amount paid by the European Issuing Bank as measured on the date such payment
was made, (ii) owed directly to the Banks (and, to the extent not reimbursed
by the Banks, the European Issuing Bank), and (iii) payable in Dollars to the
Administrative Agent, for the account of each such Bank (and, to the extent
applicable, the European Issuing Bank).
ARTICLE III
Section 3.01. The Western Pacific Letters of Credit. (a) In connection with
the Second Amended Agreement, the Western Pacific Issuing Bank has issued, or
,subject to the terms and conditions of this Agreement, the Western Pacific
Issuing Bank shall, on the Closing Date, issue, one or more irrevocable,
transferable letters of credit each in substantially the form of Exhibit B
attached hereto in favor of the Western Pacific Beneficiaries, which letter
or letters of credit (after giving effect to any amendments thereof as of the
Closing Date) shall be in the aggregate amount of the Tranche B Commitment
and shall expire on the Scheduled Maturity Date (each such letter of credit
and any successor letter of credit as provided herein and therein being a
"Western Pacific Letter of Credit" and, collectively, the "Western Pacific
Letters of Credit").
(b) The aggregate Stated Amount of the Western Pacific Letters of
Credit shall at all times be equal to the Tranche B Commitment as in effect
from time to time.
(c) The Available Amount of each Western Pacific Letter of Credit
shall be reduced automatically by the Dollar Equivalent of the amount of each
drawing honored thereunder (as calculated on the day of payment by the Western
Pacific Issuing Bank with respect thereto), and, so long as no Event of
Default or Unmatured Event of Default shall have occurred and be continuing,
shall be reinstated in the same amount upon reimbursement by the Company in
full for such draw.
(d) Subject to the terms of this Agreement, the Western Pacific
Letters of Credit may be amended or replaced from time to time (i) as a result
of a reallocation of the Tranche B Commitment pursuant to Article VIII hereof,
(ii) as a result of an extension of the Scheduled Maturity Date pursuant to
Section 15.07 hereof, and (iii) as otherwise agreed to by the Company, the
Administrative Agent, the Western Pacific Issuing Bank and the Tranche B Agent
(provided, that each Western Pacific Letter of Credit shall in all events
remain in substantially the form of Exhibit B attached hereto).
Section 3.02. Western Pacific Ancillary Loans. (a) The Western Pacific
Letters of Credit shall support loans and other financial accommodations
(each a "Western Pacific Ancillary Loan" and, collectively, the "Western
Pacific Ancillary Loans") made by Western Pacific branches, Subsidiaries or
Affiliates (each a "Western Pacific Ancillary Lender" and, collectively,
the "Western Pacific Ancillary Lenders") of the Western Pacific Issuing Bank
to the Western Pacific Ancillary Borrowers. Each Western Pacific Ancillary
Loan:
(i) shall have an expiration date which (1) is no more than twelve
(12) months after the date such Western Pacific Ancillary Loan is made
(provided, that the applicable Western Pacific Ancillary Lender and Western
Pacific Ancillary Borrower may agree to additional terms each not to exceed
twelve (12) months so long as such agreement is made no earlier than the
thirtieth (30th) day before the end of the preceding term) and (2) is on or
before the Scheduled Maturity Date then in effect; and
(ii) may, at the option of the applicable Western Pacific Ancillary
Lender and Western Pacific Ancillary Borrower, be made in any Alternative
Currency.
In the event that the Dollar Equivalent, as calculated on any day, of all of
the unpaid principal of, interest on, and fees, expenses and other amounts
owing under or in connection with the Western Pacific Ancillary Loans
(collectively, the "Western Pacific Ancillary Obligations") shall at any time
exceed the Tranche B Commitment as in effect on such day, the Company (i)
shall cause the Western Pacific Ancillary Borrowers to either (1) make such
payments or prepayments of the Western Pacific Ancillary Obligations (together
with all costs, expenses, indemnified amounts and other amounts due as a
result of such payment or prepayment to the applicable Western Pacific
Ancillary Lender) necessary to eliminate such excess or (2) provide the
Western Pacific Ancillary Lenders with cash collateral in the amount of such
excess, and (ii) to the extent the Western Pacific Ancillary Borrowers do not
make such payments or repayments or provide such cash collateral, hereby
absolutely and unconditionally guarantees the immediate repayment of such
excess to the Tranche B Agent for the account of the Western Pacific Ancillary
Lenders.
(b) The Western Pacific Ancillary Loans shall be made by the
Western Pacific Ancillary Lenders to the Company and/or those Subsidiaries of
the Company located in the Western Pacific (each a "Western Pacific Ancillary
Borrower" and, collectively, the "Western Pacific Ancillary Borrowers")
designated from time to time by the Company by delivery to the Tranche B
Agent, for each such Western Pacific Ancillary Borrower, of a Certificate of
Designation substantially in the form of Exhibit B-1 hereto. Each Certificate
of Designation (other than those Certificates of Designation delivered on the
Closing Date) must be delivered at least five (5) Business Days prior to the
making of the first Western Pacific Ancillary Loan to the applicable Western
Pacific Ancillary Borrower, and any loans made prior to such date shall not
constitute Western Pacific Ancillary Loans hereunder. The Company shall
deliver to the Tranche B Agent written notice of any Western Pacific Ancillary
Borrower which shall no longer borrow Western Pacific Ancillary Loans promptly
after the repayment of all Western Pacific Ancillary Obligations of such
Western Pacific Ancillary Borrower and the termination of all instruments and
documents evidencing Western Pacific Ancillary Loans to such Western Pacific
Ancillary Borrower. Upon receipt by the Tranche B Agent of the notice
described in the preceding sentence, the Certificate of Designation for the
applicable Western Pacific Ancillary Borrower shall be deemed withdrawn, and
such Western Pacific Ancillary Borrower shall cease to be a Western Pacific
Ancillary Borrower hereunder.
SECTION 3.03. Payments Under the Western Pacific Letters of Credit;
Payments Under the Western Pacific Letters of Credit; Reimbursement
Obligations. (a) In the event of any conforming drawing under a Western
Pacific Letter of Credit prior to 1:00 P.M. (New York time) on a Business Day,
the Western Pacific Issuing Bank shall make payment thereof to the applicable
Western Pacific Beneficiary or Beneficiaries by the close of business on the
second Business Day after the receipt of such drawing. Any drawing received
after 1:00 P.M. (New York time) on a Business Day shall be deemed to have been
received by the Western Pacific Issuing Bank on the next Business Day. The
Western Pacific Issuing Bank shall give the Company prompt telephonic notice,
confirmed promptly thereafter in writing, of each such drawing under such
Western Pacific Letter of Credit; provided, however, that failure by the
Western Pacific Issuing Bank to so notify the Company, or failure by the
Company to receive such notice, shall not in any manner whatsoever (i) alter
the Company's obligations, or the rights of the Western Pacific Issuing Bank
or of any Bank, hereunder, or (ii) impose any liability of any sort on the
Western Pacific Issuing Bank or any Bank, or (iii) alter the Western Pacific
Issuing Bank's obligations under the Western Pacific Letters of Credit to the
Western Pacific Beneficiaries.
(b) With respect to any drawing under a Western Pacific Letter of
Credit, the Company shall pay to the Western Pacific Issuing Bank, in
immediately available funds and in the appropriate Alternative Currency, an
amount equal to the amount of such drawing no later than 10:00 A.M. (New York
time) on the Business Day on which payment of such drawing is required to be
made by the Western Pacific Issuing Bank. The obligation of the Company to
pay the Western Pacific Issuing Bank under this Section 3.03(b) for any draw
under a Western Pacific Letter of Credit (each, a "Western Pacific
Reimbursement Obligation" and collectively, the "Western Pacific Reimbursement
Obligations") shall bear interest from the date of the applicable payment by
the Western Pacific Issuing Bank at a per annum rate of interest equal to the
Base Rate plus two percent (2%).
Section 3.04. Participations. (a) As of the Closing Date, each Bank shall
irrevocably and unconditionally purchase and receive from the Western Pacific
Issuing Bank, without recourse or warranty, an undivided interest and
participation to the extent of such Bank's Aggregate Pro Rata Share in the
Western Pacific Letters of Credit and the Western Pacific Reimbursement
Obligations (including, without limitation, all obligations of the Company in
each case with respect thereto, other than amounts owing to the Western
Pacific Issuing Bank under Sections 9.04, 9.05 and 9.06(b)).
(b) In the event that the Western Pacific Issuing Bank makes any
payment under a Western Pacific Letter of Credit and the Company shall not
have paid such amount to the Western Pacific Issuing Bank in accordance with
Section 3.03(b), the Western Pacific Issuing Bank shall promptly notify the
Administrative Agent, which shall promptly notify each Bank, of such failure,
and each Bank shall promptly and unconditionally pay to the Adminis-trative
Agent for the account of the Western Pacific Issuing Bank the amount of such
Bank's Aggregate Pro Rata Share of the Dollar Equivalent (measured as of the
date payment is made by the Western Pacific Issuing Bank) of such payment in
Dollars and in same day funds and the Administrative Agent shall promptly pay
such amount, and any other amounts received by the Administrative Agent for
the Western Pacific Issuing Bank's account pursuant to this Section 3.04(b),
to the Western Pacific Issuing Bank. If the Administrative Agent so notifies
such Bank prior to 11:00 A.M. (New York time) on any Business Day, such Bank
shall make available to the Administra-tive Agent for the account of the
Western Pacific Issuing Bank its Aggregate Pro Rata Share of the amount of
such payment in same day funds not later than 2:00 P.M. (New York time) on
such Business Day (or by the close of business on such Business Day if notice
is given after 11:00 A.M. (New York time) but before 2:00 P.M. (New York
time), and on the next succeeding Business Day if notice is given after 2:00
P.M. (New York time)). If and to the extent such Bank shall not have so made
its Aggregate Pro Rata Share of the amount of such payment available to the
Administrative Agent for the account of the Western Pacific Issuing Bank, such
Bank agrees to pay to the Administrative Agent for the account of the Western
Pacific Issuing Bank forthwith on demand such amount together with interest
thereon, for each day from the date such payment was first due until such
amount is paid to the Administrative Agent for the account of the Western
Pacific Issuing Bank, at the Federal Funds Rate. The failure of any Bank to
make available to the Administrative Agent for the account of the Western
Pacific Issuing Bank its Aggregate Pro Rata Share of any such payment shall
not relieve any other Bank of its obligation here-under to make available to
the Administrative Agent for the account of the Western Pacific Issuing Bank
its Aggregate Pro Rata Share of any payment on the date such payment is to be
made.
(c) Upon payment by one or more Banks under this Section 3.04 in
connection with a drawing under a Western Pacific Letter of Credit, the
Western Pacific Reimbursement Obligations with respect to such drawing shall
be (i) denominated in Dollars in an amount equal to the Dollar Equivalent of
the amount paid by the Western Pacific Issuing Bank as measured on the date
such payment was made, (ii) owed directly to the Banks (and, to the extent not
reimbursed by the Banks, the Western Pacific Issuing Bank), and (iii) payable
in Dollars to the Administrative Agent, for the account of each such Bank
(and, to the extent applicable, the Western Pacific Issuing Bank).
ARTICLE IV
Section 4.01. The Asian Letters of Credit. (a) In connection with the
Second Amended Agreement, the Asian Issuing Bank has issued, or, subject to
the terms and conditions of this Agreement, the Asian Issuing Bank shall, on
the Closing Date, issue, one or more irrevocable, transferable letters of
credit each in substantially the form of Exhibit C attached hereto in favor
of the Asian Beneficiaries, which letter or letters of credit (after giving
effect to any amendments thereof as of the Closing Date) shall be in the
aggregate amount of the Tranche C Commitment and shall expire on the
Scheduled Maturity Date (each such letter of credit and any successor letter
of credit as provided herein and therein being an "Asian Letter of Credit"
and, collectively, the "Asian Letters of Credit").
(b) The aggregate Stated Amount of the Asian Letters of Credit
shall at all times be equal to the Tranche C Commitment as in effect from time
to time.
(c) The Available Amount of each Asian Letter of Credit shall be
reduced automatically by the Dollar Equivalent of the amount of each drawing
honored thereunder (as calculated on the day of payment by the Asian Issuing
Bank with respect thereto), and, so long as no Event of Default or Unmatured
Event of Default shall have occurred and be continuing, shall be reinstated in
the same amount upon reimbursement by the Company in full for such draw.
(c) Subject to the terms of this Agreement, the Asian Letters of
Credit may be amended from time to time (i) as a result of a reallocation of
the Tranche C Commitment pursuant to Article VIII hereof, (ii) as a result of
an extension of the Scheduled Maturity Date pursuant to Section 15.07 hereof,
and (iii) as otherwise agreed to by the Company, the Administrative Agent, the
Asian Issuing Bank and the Tranche C Agent (provided, that each Asian Letter
of Credit shall in all events remain in substantially the form of Exhibit C
attached hereto).
Section 4.02. Asian Ancillary Loans. (a) The Asian Letters of Credit shall
support loans and other financial accommodations (each a "Asian Ancillary
Loan" and, collectively, the "Asian Ancillary Loans") made by Asian branches,
Subsidiaries or Affiliates (each a "Asian Ancillary Lender" and, collectively,
the "Asian Ancillary Lenders") of the Asian Issuing Bank to the Asian
Ancillary Borrowers. Each Asian Ancillary Loan:
(i) shall have an expiration date which (1) is no more than twelve
(12) months after the date such Asian Ancillary Loan is made (provided, that
the applicable Asian Ancillary Lender and Asian Ancillary Borrower may agree
to additional terms each not to exceed twelve (12) months so long as such
agreement is made no earlier than the thirtieth (30th) day before the end of
the preceding term) and (2) is on or before the Scheduled Maturity Date then
in effect; and
(ii) may, at the option of the applicable Asian Ancillary Lender and
Asian Ancillary Borrower, be made in any Alternative Currency.
In the event that the Dollar Equivalent, as calculated on any day, of all of
the unpaid principal of, interest on, and fees, expenses and other amounts
owing under or in connection with the Asian Ancillary Loans (collectively, the
"Asian Ancillary Obligations") shall at any time exceed the Tranche C
Commitment as in effect on such day, the Company (i) shall cause the Asian
Ancillary Borrowers to either (1) make such payments or prepayments of the
Asian Ancillary Obligations (together with all costs, expenses, indemnified
amounts and other amounts due as a result of such payment or prepayment to the
applicable Asian Ancillary Lender) necessary to eliminate such excess or (2)
provide the Asian Ancillary Lenders with cash collateral in the amount of such
excess, and (ii) to the extent the Asian Ancillary Borrowers do not make such
payments or repayments or provide such cash collateral, hereby absolutely and
unconditionally guarantees the immediate repayment of such excess to the
Tranche C Agent for the account of the Asian Ancillary Lenders.
(b) The Asian Ancillary Loans shall be made by the Asian Ancillary
Lenders to the Company and/or those Subsidiaries of the Company located in
Asia (each a "Asian Ancillary Borrower" and, collectively, the "Asian
Ancillary Borrowers") designated from time to time by the Company by delivery
to the Tranche C Agent, for each such Asian Ancillary Borrower, of a
Certificate of Designation substantially in the form of Exhibit C-1 hereto.
Each Certificate of Designation (other than those Certificates of Designation
delivered on the Closing Date) must be delivered at least five (5) Business
Days prior to the making of the first Asian Ancillary Loan to the applicable
Asian Ancillary Borrower, and any loans made prior to such date shall not
constitute Asian Ancillary Loans hereunder. The Company shall deliver to the
Tranche C Agent written notice of any Asian Ancillary Borrower which shall no
longer borrow Asian Ancillary Loans promptly after the repayment of all Asian
Ancillary Obligations of such Asian Ancillary Borrower and the termination of
all instruments and documents evidencing Asian Ancillary Loans to such Asian
Ancillary Borrower. Upon receipt by the Tranche C Agent of the notice
described in the preceding sentence, the Certificate of Designation for the
applicable Asian Ancillary Borrower shall be deemed withdrawn, and such Asian
Ancillary Borrower shall cease to be an Asian Ancillary Borrower hereunder.
SECTION 4.03. Payments Under the Asian Letters of Credit;
. Payments Under the Asian Letters of Credit; Reimbursement Obligations. (a)
In the event of any conforming drawing under an Asian Letter of Credit prior
to 1:00 P.M. (New York time) on a Business Day, the Asian Issuing Bank shall
make payment thereof to the applicable Asian Beneficiary or Beneficiaries by
the close of business on the second Business Day after the receipt of such
drawing. Any drawing received after 1:00 P.M. (New York time) on a Business
Day shall be deemed to have been received by the Asian Issuing Bank on the
next Business Day. The Asian Issuing Bank shall give the Company prompt
telephonic notice, confirmed promptly thereafter in writing, of each such
drawing under such Asian Letter of Credit; provided, however, that failure by
the Asian Issuing Bank to so notify the Company, or failure by the Company to
receive such notice, shall not in any manner whatsoever (i) alter the
Company's obligations, or the rights of the Asian Issuing Bank or of any Bank,
hereunder, or (ii) impose any liability of any sort on the Asian Issuing Bank
or any Bank, or (iii) alter the Asian Issuing Bank's obligations under the
Asian Letters of Credit to the Asian Beneficiaries.
(b) With respect to any drawing under an Asian Letter of Credit,
the Company shall pay to the Asian Issuing Bank, in immediately available
funds and in the appropriate Alternative Currency, an amount equal to the
amount of such drawing no later than 10:00 A.M. (New York time) on the
Business Day on which payment of such drawing is required to be made by the
Asian Issuing Bank. The obligation of the Company to pay the Asian Issuing
Bank under this Section 4.03(b) for any draw under an Asian Letter of Credit
(each, a "Asian Reimbursement Obligation" and collectively, the "Asian
Reimbursement Obligations") shall bear interest from the date of the
applicable payment by the Asian Issuing Bank at a per annum rate of interest
equal to the Base Rate plus two percent (2%).
Section 4.04. Participations. (a) As of the Closing Date, each Bank shall
irrevocably and unconditionally purchase and receive from the Asian Issuing
Bank, without recourse or warranty, an undivided interest and participation
to the extent of such Bank's Aggregate Pro Rata Share in the Asian Letters of
Credit and the Asian Reimbursement Obligations (including, without
limitation, all obligations of the Company in each case with respect thereto,
other than amounts owing to the Asian Issuing Bank under Sections 9.04,
9.05 and 9.06(b)).
(b) In the event that the Asian Issuing Bank makes any payment
under an Asian Letter of Credit and the Company shall not have paid such
amount to the Asian Issuing Bank in accordance with Section 4.03(b), the Asian
Issuing Bank shall promptly notify the Administrative Agent, which shall
promptly notify each Bank, of such failure, and each Bank shall promptly and
unconditionally pay to the Adminis-trative Agent for the account of the Asian
Issuing Bank the amount of such Bank's Aggregate Pro Rata Share of the Dollar
Equivalent (measured as of the date payment is made by the Asian Issuing Bank)
of such payment in Dollars and in same day funds and the Administrative Agent
shall promptly pay such amount, and any other amounts received by the
Administrative Agent for the Asian Issuing Bank's account pursuant to this
Section 4.04(b), to the Asian Issuing Bank. If the Administrative Agent so
notifies such Bank prior to 11:00 A.M. (New York time) on any Business Day,
such Bank shall make available to the Administrative Agent for the account of
the Asian Issuing Bank its Aggregate Pro Rata Share of the amount of such
payment in same day funds not later than 2:00 P.M. (New York time) on such
Business Day (or by the close of business on such Business Day if notice is
given after 11:00 A.M. (New York time) but before 2:00 P.M. (New York time),
and on the next succeeding Business Day if notice is given after 2:00 P.M.
(New York time)). If and to the extent such Bank shall not have so made its
Aggregate Pro Rata Share of the amount of such payment available to the
Administrative Agent for the account of the Asian Issuing Bank, such Bank
agrees to pay to the Administrative Agent for the account of the Asian Issuing
Bank forthwith on demand such amount together with interest thereon, for each
day from the date such payment was first due until such amount is paid to the
Administrative Agent for the account of the Asian Issuing Bank, at the Federal
Funds Rate. The failure of any Bank to make available to the Administrative
Agent for the account of the Asian Issuing Bank its Aggregate Pro Rata Share
of any such payment shall not relieve any other Bank of its obligation
here-under to make available to the Administrative Agent for the account of
the Asian Issuing Bank its Aggregate Pro Rata Share of any payment on the date
such payment is to be made.
(c) Upon payment by one or more Banks under this Section 4.04 in
connection with a drawing under an Asian Letter of Credit, the Asian
Reimbursement Obligations with respect to such drawing shall be (i)
denominated in Dollars in an amount equal to the Dollar Equivalent of the
amount paid by the Asian Issuing Bank as measured on the date such payment was
made, (ii) owed directly to the Banks (and, to the extent not reimbursed by
the Banks, the Asian Issuing Bank), and (iii) payable in Dollars to the
Administrative Agent, for the account of each such Bank (and, to the extent
applicable, the Asian Issuing Bank).
ARTICLE V
Section 5.01. The Syndicated Loans. Each Bank severally and not jointly
agrees, on the terms and conditions hereinafter set forth, to make Syndicated
Loans in Dollars to the Company from time to time on any Business Day during
the period from the date hereof until the Termination Date in an aggregate
amount not to exceed at any time outstanding such Bank's Aggregate Pro Rata
Share of the Tranche D Commitment as in effect from time to time (less, in
the case of a Multicurrency Bank, the amount of such Multicurrency Bank's
Multicurrency Revolver Pro Rata Share of the Tranche F Commitment). Each
Syndicated Borrowing shall be in an aggregate amount equal to $5,000,000 or
an integral multiple of $1,000,000 in excess thereof and shall consist of
Syndicated Loans of the same Type made on the same day by the Banks ratably
according to their respective Domestic Revolver Pro Rata Shares. Within the
limits of the Tranche D Commitment and subject to the terms of this
Agreement, the Company may borrow, prepay pursuant to Section 5.08 and
reborrow under this Section 5.01.
Section 5.02. Making the Syndicated Loans.
(a) Each Syndicated Borrowing shall be made on written notice
(each, a "Notice of Syndicated Borrowing") from the Company to the Tranche D
Agent, given not later than (i) 10:00 A.M. (New York time) on the date of a
proposed Syndicated Borrowing of Base Rate Loans, and (ii) 11:00 A.M. (New
York time) on the third Business Day prior to the date of a proposed
Syndicated Borrowing of Eurocurrency Rate Loans. Each Notice of Syndicated
Borrowing shall be by telecopier or other form of teletransmission, in
substantially the form of Exhibit D hereto, specifying therein the requested
(i) date of such Syndicated Borrowing (which shall be a Business Day), (ii)
Type of Syndicated Loans comprising such Syndicated Borrowing, (iii) aggregate
amount of such Syndicated Borrowing, and (iv) in the case of a Syndicated
Borrowing comprised of Eurocurrency Rate Loans, Interest Period for each such
Syndicated Loan. In lieu of delivering the above described Notice of
Syndicated Borrowing, the Company may give the Tranche D Agent telephonic
notice of any proposed Syndicated Borrowing by the time required under this
Section 5.02(a); provided, that the Company agrees to confirm such notice in
writing by facsimile transmission of an executed Notice of Syndicated
Borrowing to the Tranche D Agent no later than 5:00 P.M. (New York time) on
the same day; provided further, however, that any failure by the Company to so
confirm any telephonic notice shall in no event impair the validity of such
telephonic notice.
(b) Promptly after receipt of a Notice of Syndicated Borrowing
under Section 5.02(a) (or telephonic notice in lieu thereof), the Tranche D
Agent shall notify each Bank by telecopy or other form of teletransmission of
the proposed Syndicated Borrowing. Each Bank shall, before 11:00 A.M. (New
York time) (in the case of a Syndicated Borrowing of Eurocurrency Rate Loans)
or 2:00 P.M. (New York time) (in the case of a Syndicated Borrowing of Base
Rate Loans) on the date of such Syndicated Borrowing, make the amount of its
Syndicated Loan available to the Tranche D Agent, at its address referred to
in Section 15.02, in Dollars and in same day funds. After the Tranche D
Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Section 10.02, the Tranche D Agent will make such
funds available to the Company at the Tranche D Agent's aforesaid address.
(c) Anything in subsection (a) above to the contrary
notwithstanding, the Company may not select Eurocurrency Rate Loans for any
Syndicated Borrowing if any Event of Default or Unmatured Event of Default has
occurred and is then continuing.
(d) Each Notice of Syndicated Borrowing (or telephonic notice in
lieu thereof) shall be irrevocable and binding on the Company. In the case of
any Syndicated Borrowing which the related Notice of Syndicated Borrowing (or
telephonic notice in lieu thereof) specifies is to be comprised of
Eurocurrency Rate Loans, the Company shall indemnify each Bank against any
loss, cost or expense incurred by such Bank as a result of any failure to
fulfill on or before the date specified in such Notice of Syndicated Borrowing
(or telephonic notice in lieu thereof) for such Syndicated Borrowing the
applicable conditions set forth in Section 10.02, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund the Syndicated Loan to be made by such
Bank as part of such Syndicated Borrowing when such Syndicated Loan, as a
result of such failure, is not made on such date.
(e) Unless the Tranche D Agent shall have received notice from a
Bank prior to the date of any Syndicated Borrowing that such Bank will not
make available to the Tranche D Agent such Bank's ratable portion of such
Syndicated Borrowing, the Tranche D Agent may assume that such Bank has made
such portion available to the Tranche D Agent on the date of such Syndicated
Borrowing in accordance with subsection (b) of this Section 5.02 and the
Tranche D Agent in its sole discretion may, in reliance upon such assumption,
make available to the Company on such date a corresponding amount. If and to
the extent that such Bank shall not have so made such ratable portion
available to the Tranche D Agent, such Bank and the Company severally agree to
repay to the Tranche D Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Company until the date such amount is repaid to the Tranche D
Agent, at (i) in the case of the Company, the interest rate applicable at the
time to Syndicated Loans comprising such Syndicated Borrowing and (ii) in the
case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Tranche D Agent such corresponding amount, such amount so repaid shall
constitute such Bank's Syndicated Loan as part of such Syndicated Borrowing
for purposes of this Agreement.
(f) The failure of any Bank to make the Syndicated Loan to be made
by it as part of any Syndicated Borrowing shall not relieve any other Bank of
its obligation, if any, hereunder to make its Syndicated Loan on the date of
such Syndicated Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Syndicated Loan to be made by such other Bank on
the date of any Syndicated Borrowing.
Section 5.02. The Bid Rate Loans. (a) Each Bank severally agrees that the
Company may make Bid Rate Borrowings in Dollars under this Section 5.03 from
time to time on any Business Day during the period from the Closing Date
until the date occurring thirty (30) days prior to the Termination Date in
the manner set forth below; provided, that following the making of each Bid
Rate Borrowing, the aggregate amount of the Syndicated Loans and Bid Rate
Loans then outstanding shall not exceed the Tranche D Commitment in effect at
such time (computed without regard to any Bid Rate Reduction).
(b) The procedures for the solicitation and acceptance of Bid Rate
Loans are as follows:
(i) The Company may request a Bid Rate Borrowing under this Section
5.03(b) by delivery to the Bid Agent of written notice (each, a "Notice of
Bid Rate Borrowing"), given not later than 10:00 A.M. (New York time) (A) one
Business Day prior to the date of the proposed Bid Rate Borrowing, if the
Company shall specify in the Notice of Bid Rate Borrowing that the rates of
interest to be offered by the Banks shall be fixed rates per annum (such type
of solicitation being a "Fixed Rate Auction") and (B) four Business Days
prior to the date of the proposed Bid Rate Borrowing, if the Company shall
instead specify in the Notice of Bid Rate Borrowing an index or other basis
to be used by the Banks in determining the rates of interest to be offered by
them (such type of solicitation being an "Indexed Rate Auction"). Each
Notice of Bid Rate Borrowing shall be by telecopier or other form of
teletransmission, in substantially the form of Exhibit D-1 hereto, specifying
therein (i) the requested date of such Bid Rate Borrowing (which shall be a
Business Day), (ii) the requested aggregate amount of such Bid Rate
Borrowing, (iii) the requested maturity date for repayment of each Bid Rate
Loan to be made as part of such Bid Rate Borrowing (which maturity date may
not be earlier than the date occurring thirty (30) days after the date of
such Bid Rate Borrowing or later than the earlier of (1) the date occurring
ninety (90) days after the date of such Bid Rate Borrowing and (2) the
Termination Date), (iv) the requested interest payment schedule with respect
to the Bid Rate Loans comprising such Bid Rate Borrowing, (v) the basis to be
used by the Banks in determining the rates of interest to be offered by them,
and (vi) such other terms applicable to such Bid Rate Borrowing. The Bid
Agent shall, promptly following its receipt of a Notice of Bid Rate Borrowing
under this Section 5.03(b), notify each Bank of such request by sending such
Bank a copy of such Notice of Bid Rate Borrowing.
(ii) Each Bank may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Bid Rate Loans to the Company as part
of such proposed Bid Rate Borrowing at a rate or rates of interest specified
by such Bank in its sole discretion, by notifying the Bid Agent (which shall
give prompt notice thereof to the Company), before 10:00 A.M. (New York time)
(A) on the date of such proposed Bid Rate Borrow-ing, in the case of a Fixed
Rate Auction, and (B) two Business Days before the date of such proposed Bid
Rate Borrowing, in the case of an Indexed Rate Auction, of the minimum amount
and maximum amount of each Bid Rate Loan which such Bank would be willing to
make as part of such proposed Bid Rate Borrowing (which amounts may, subject
to the proviso to Section 5.03(a), exceed such Bank's Domestic Revolver Pro
Rata Share of the Tranche D Commit-ment), the rate or rates of interest
therefor and such Bank's Applicable Lending Office with respect to such Bid
Rate Loan.
(iii) The Company shall, in turn, before 12:00 noon (New York time)
(A) on the date of such proposed Bid Rate Borrowing, in the case of a Fixed
Rate Auction, and (B) two Business Days before the date of such proposed Bid
Rate Borrowing, in the case of an Indexed Rate Auction, either:
(x) cancel such Bid Rate Borrowing by giving the Bid Agent
notice (which may be by telephone, confirmed promptly in writing by
facsimile) to that effect, or
(y) accept, subject to Sections 5.03(c) and (d), one or more
of the offers made by any Bank or Banks pursuant to paragraph (ii) above, in
its sole discretion, by giving notice (which may be by telephone, confirmed
promptly in writing by facsimile) to the Bid Agent of the amount of each Bid
Rate Loan (which amount shall be equal to or greater than the minimum amount,
and equal to or less than the maximum amount, notified to the Company by the
Bid Agent on behalf of such Bank for such Bid Rate Loan pursuant to paragraph
(ii) above) to be made by each Bank as part of such Bid Rate Borrowing, and
reject any remaining offers made by Banks pursuant to paragraph (ii) above by
giving the Bid Agent notice to that effect.
(iv) If the Company notifies the Bid Agent that such Bid Rate
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Bid Agent
shall give prompt notice thereof to the Banks and such Bid Rate Borrowing
shall not be made.
(v) If the Company accepts one or more of the offers made by any
Bank or Banks pursuant to paragraph (iii)(y) above, the Bid Agent shall in
turn promptly notify (A) each Bank that has made an offer as described in
paragraph (ii) above of the date and aggregate amount of such Bid Rate
Borrowing and whether or not any offer or offers made by such Bank pursuant
to paragraph (ii) above have been accepted by the Company, (B) each Bank that
is to make a Bid Rate Loan as part of such Bid Rate Borrowing, of the amount
of each Bid Rate Loan to be made by such Bank as part of such Bid Rate
Borrowing, and (C) each Bank that is to make a Bid Rate Loan as part of such
Bid Rate Borrowing, upon receipt, that the Bid Agent has received forms of
documents appearing to fulfill the applicable conditions set forth in Article
X. Each Bank that is to make a Bid Rate Loan as part of such Bid Rate
Borrowing shall, before 1:00 P.M. (New York time) on the date of such Bid
Rate Borrowing specified in the notice received from the Bid Agent pursuant
to clause (A) of the preceding sentence or any later time when such Bank
shall have received notice from the Bid Agent pursuant to clause (C) of the
preceding sentence, make available for the account of its Applicable Lending
Office to the Bid Agent at its address referred to in Section 15.02 such
Bank's portion of such Bid Rate Borrowing, in Dollars and in same day funds.
Upon fulfillment of the applicable conditions set forth in Article X and
after receipt by the Bid Agent of such funds, the Bid Agent will make such
funds available to the Company at the Bid Agent's aforesaid address.
Promptly after each Bid Rate Borrowing the Bid Agent will notify each Bank of
the amount of the Bid Rate Borrowing, the consequent Bid Rate Reduction and
the dates upon which such Bid Rate Reduction commenced and will terminate.
(c) Each Bid Rate Borrowing shall be in an aggregate amount of
$25,000,000 or an integral multiple of $1,000,000 in excess thereof (but in no
case may it exceed the aggregate amount of Bid Rate Loans requested in the
applicable Notice of Bid Rate Borrowing). Following the making of each Bid
Rate Borrowing, the Company shall be in compliance with the limitation set
forth in the proviso to the first sentence of subsection (a) above.
(d) Each acceptance by the Company pursuant to Section
5.03(b)(iii)(y) of the offers made in response to a Notice of Bid Rate
Borrowing shall be treated as an acceptance of such offers in ascending order
of the rates or margins, as applicable, at which the same were made but if, as
a result thereof, two or more offers at the same such rate or margin would be
partially accepted, then the amounts of the Bid Rate Loans in respect of which
such offers are accepted shall be treated as being the amounts which bear the
same proportion to one another as the respective amounts of the Bid Rate Loans
so offered bear to one another but, in each case, rounded as the Bid Agent may
consider necessary to ensure that the amount of each such Bid Rate Loan is
$500,000 or an integral multiple thereof.
(e) Within the limits and on the conditions set forth in this
Section 5.03, the Company may from time to time borrow under this Section
5.03, repay pursuant to subsection (f) below, and reborrow under this Section
5.03.
(f) The Company shall repay to the Bid Agent for the account of
each Bank which has made a Bid Rate Loan or (if different) for the account of
the holder of the applicable Bid Rate Note, on the maturity date of each Bid
Rate Loan (such maturity date being that specified by the Company for
repayment of such Bid Rate Loan in the related Notice of Bid Rate Borrowing
and provided in the Bid Rate Note evidencing such Bid Rate Loan), the then
unpaid principal amount of such Bid Rate Loan. The Company shall not have the
right to prepay any principal amount of any Bid Rate Loan except (i) if, and
then only on the terms, specified by the Company for such Bid Rate Loan in the
related Notice of Bid Rate Borrowing and set forth in the Bid Rate Note
evidencing such Bid Rate Loan, and (ii) in the case of the replacement or
removal of a Bank pursuant to Section 15.08, provided, that in the case of
this clause (ii), the Company shall pay, on demand of such Bank, to the
Tranche D 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 prepayment, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund or maintain such Bid Rate Loan.
(g) The Company shall pay interest on the unpaid principal amount
of each Bid Rate Loan, from the date of such Bid Rate Loan to the date the
principal amount of such Bid Rate Loan is repaid in full, at the rate of
interest for such Bid Rate Loan specified by the Bank making such Bid Rate
Loan in the related notice submitted by such Bank pursuant to Section
5.03(b)(ii), payable on the interest payment date or dates specified by the
Company for such Bid Rate Loan in such Notice of Bid Rate Borrowing, in each
case as provided in the Bid Rate Note evidencing such Bid Rate Loan.
(h) The indebtedness of the Company resulting from each Bid Rate
Loan shall be evidenced by a separate Bid Rate Note payable to the order of
the Bank making such Bid Rate Loan.
Section 5.04. Tranche D Facility Fee. The Company agrees to pay to the
Administrative Agent, for the account of each Bank, a facility fee in an
amount equal to two-tenths of one percent (0.20%) per annum applied to each
Bank's Domestic Revolver Pro Rata Share of the average daily Tranche D
Commitment (irrespective of usage and without giving effect to any Bid Rate
Reduction) from the Closing Date (or, if applicable, from the effective date
specified in an Assignment and Acceptance pursuant to which it became a Bank
hereunder) until the Termination Date, payable in arrears on the last
Business Day of each calendar quarter, commencing December 31, 1994, and on
the Termination Date.
Section 5.05. Repayment. The Company shall repay the principal amount of
(a) each Base Rate Loan on the Termination Date and (b) each Eurocurrency
Rate Loan on the earlier of (i) the last day of the Interest Period for such
Loan or (ii) the Termination Date.
Section 5.05. Interest on Syndicated Loans. Subject to Section 9.07, the
Company shall pay interest on the unpaid principal amount of each Syndicated
Loan owing to each Bank from the date of such Syndicated Loan until such
principal amount shall be paid in full, at the following rates per annum and
at the following times:
(a) Base Rate Loans. If such Syndicated Loan is a Base Rate Loan,
a rate per annum equal at all times to the Base Rate in effect from time to
time, payable on the last day of each calendar quarter and on any date such
Base Rate Loan is Converted or paid in full.
(b) Eurocurrency Rate Loans. If such Syndicated Loan is a
Eurocurrency Rate Loan, a rate per annum equal at all times during the
Interest Period for such Loan to the sum of the Eurocurrency Rate for such
Interest Period plus 0.35% per annum, 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 such Interest Period every
three months from the first day of such Interest Period.
If on any day a Syndicated Loan is outstanding with respect to which effective
notice has not been delivered to the Tranche D Agent in accordance with the
terms hereof specifying the basis for determining the rate of interest
applicable thereto (including, without limitation, Eurocurrency Rate Loans
which, following the end of the Interest Period with respect thereto, are not
reborrowed hereunder as Eurocurrency Rate Loans), then for such day such
Syndicated Loan shall be a Base Rate Loan.
Section 5.07. Voluntary Conversion of Loans. (a) Subject to the
provisions of Sections 9.07 and 9.08, the Company may, by notice delivered in
accordance with subsection (b) below, (i) at any time Convert Base Rate Loans
in an aggregate principal amount of at least $5,000,000 into Eurocurrency
Rate Loans and (ii) Convert Eurocurrency Rate Loans into Base Rate Loans on
the expiration date of the Interest Period with respect thereto; provided,
that no Loans may be Converted into Eurocurrency Rate Loans if an Event of
Default or an Unmatured Event of Default has occurred and is continuing.
(b) In the event that the Company elects to Convert Loans under
subsection (a), the Company shall deliver written notice (each, a "Notice of
Conversion") to the Tranche D Agent not later than 11:00 A.M. (New York time)
at least (i) one Business Day in advance of a proposed Conversion into Base
Rate Loans and (ii) three Business Days in advance of a Conversion into
Eurocurrency Rate Loans. Each Notice of Conversion shall be by telecopier or
other form of teletransmission, confirmed promptly in writing, in
substantially the form of Exhibit G hereto, specifying the requested (i) date
of such Conversion (which shall be a Business Day), (ii) the Loans to be
Converted, and (iii) if such Conversion is into Eurocurrency Rate Loans, the
duration of the Interest Period to be applied thereto. Promptly after receipt
of a Notice of Conversion under this Section 5.08(b), the Tranche D Agent
shall notify each Bank by telecopy or other similar form of teletransmission
of the proposed Conversion. Each Notice of Conversion shall be irrevocable
and, once delivered, the Company shall be bound to Convert Loans in accordance
therewith.
Section 5.08. Prepayments. The Company may, upon at least one Business
Day's (with respect to Base Rate Loans) or three Business Days' (with respect
to Eurocurrency Rate Loans) prior written notice to the Tranche D Agent,
prepay the outstanding principal amounts of the Syndicated Loans comprising
part of the same Syndicated Borrowing in whole or ratably in part, together
with accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount equal to $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and (y) any prepayment of any Eurocurrency Rate
Loans shall be made on the last day of an Interest Period for such Loans, or
otherwise only upon payment of the amounts described in Section 9.04(a)(ii).
Any notice of prepayment given to the Tranche D Agent under this Section 5.08
shall be received by the Tranche D Agent no later than 10:00 A.M. (New York
time) on the date such notice must be given, and shall specify the date of
prepayment and the aggregate principal amount of the prepayment. If a notice
of prepayment has been delivered as provided herein, the principal amount of
the Loans specified in such notice shall become due and payable on the
prepayment date specified in such notice.
ARTICLE VI
Section 6.01. The Tranche E Letter of Credit.
(a) Issuance. In connection with the Second Amended Agreement, the
Tranche E Issuing Bank has issued an irrevocable, transferable letter of
credit in substantially the form of Exhibit E attached hereto in favor of the
Tranche E Beneficiary, which letter of credit (after giving effect to any
amendments thereof as of the Closing Date) shall be in the amount of the
Tranche E Commitment and shall expire on the Scheduled Maturity Date (such
letter of credit and any successor letter of credit as provided herein and
therein being the "Tranche E Letter of Credit").
(b) Stated Amount. The Stated Amount of the Tranche E Letter of
Credit shall at all times be equal to the Tranche E Commitment as in effect
from time to time.
(c) Available Amount. The Available Amount of the Tranche E Letter
of Credit shall be reduced by the amount of each Maturity Drawing thereunder
and shall be automatically reinstated in the amount of such Maturity Drawing
unless the Tranche E Issuing Bank or the Administrative Agent has previously
notified the Tranche E Beneficiary that any of the conditions precedent set
forth in Section 10.02 are not satisfied, and such notice has not been
withdrawn in writing by the Person giving such notice. The Available Amount
of the Tranche E Letter of Credit shall be reduced immediately and
automatically to zero upon payment by the Tranche E Issuing Bank of the amount
demanded in an Acceleration Drawing thereunder, and may not thereafter be
reinstated under any circumstances.
(d) Amendment. The Tranche E Letter of Credit may be amended from
time to time as a result of (i) a reallocation of the Tranche E Commitment
pursuant to Article VIII hereof, and (ii) an extension of the Scheduled
Maturity Date pursuant to Section 15.07 hereof.
(e) Cancellation or Substitution.
(i) Notwithstanding any provision contained in the Series 1
Depositary Agreement or elsewhere to the contrary, the Company shall not, and
shall cause the Tranche E Beneficiary not to, cancel the Tranche E Letter of
Credit unless either (A) there have been one or more draws under the Tranche E
Letter of Credit properly made for all Series 1 CP Notes which are entitled to
the benefit of the Tranche E Letter of Credit or there shall be no such Series
1 CP Notes then outstanding, (B) the short-term rating assigned to the Series
1 CP Notes shall, due to a change in the short-term rating assigned to the
Tranche E Issuing Bank's short-term debt, be reduced below A-1 (in the case of
a rating from Standard & Poor's Ratings Group) or P-1 (in the case of a rating
from Moody's Investors Service, Inc.), or (C) the Tranche E Issuing Bank is to
be removed as a Bank hereunder in accordance with the terms of Section 15.08.
(ii) In the event that the Company elects to terminate the
Tranche E Letter of Credit in accordance with clause (i) above, the Company
shall execute and deliver and shall cause the Tranche E Beneficiary to execute
and deliver to the Administrative Agent and the Tranche E Issuing Bank a
Notice of Termination. At the close of the Tranche E Issuing Bank's business
on the fifteenth (15th) calendar day following receipt by the Administrative
Agent and the Tranche E Issuing Bank of such Notices of Termination, the
Tranche E Letter of Credit shall terminate and no further drawings thereunder
shall be honored.
(iii) In the event of a termination of the Tranche E Letter of
Credit pursuant to subclause (i)(A) above, the amount of the Tranche E
Commitment shall be automatically reallocated in full to the Tranche D
Commitment, and the Tranche E Commitment shall thereupon terminate (subject to
reinstatement pursuant to Section 8.03).
(iv) In the event of a termination of the Tranche E Letter of
Credit pursuant to subclauses (i)(B) or (i)(C) above, the Company shall, at
its option, either (1) elect by written notice to the Administrative Agent to
terminate the Tranche E Commitment, whereupon the Tranche E Commitment shall
be automatically reallocated in full to the Tranche D Commitment and the
Tranche E Commitment shall thereupon terminate (subject to reinstatement
pursuant to Section 8.03), or (2) replace the Tranche E Issuing Bank with a
financial institution acceptable to the Majority Banks, where the short-term
securities of such institution, or short-term securities supported by letters
of credit issued by such institution, are rated at least A-1 (in the case of a
rating from Standard & Poor's Ratings Group) or P-1 (in the case of a rating
from Moody's Investors Service, Inc.). Upon (A) delivery to the
Administrative Agent of an Issuing Bank Acceptance Certificate duly executed
by such institution and (B) the issuance of a letter of credit by such
institution identical in form to the terminated Tranche E Letter of Credit,
such financial institution shall become the Tranche E Issuing Bank hereunder
(and all obligations of the old Tranche E Issuing Bank under this Agreement
shall thereupon terminate), and such letter of credit shall be the Tranche E
Letter of Credit hereunder.
(v) The Administrative Agent shall give the Banks prompt
notice of any actions taken under this Section 6.01(e).
Section 6.02. Series 1 CP Notes. (a) The Tranche E Letter of Credit shall
support the short-term commercial paper notes (Series 1) issued by the
Company in accordance with the Series 1 Depositary Agreement and this Article
VI (each a "Series 1 CP Note" and, collectively, the "Series 1 CP Notes").
The aggregate Face Amount of Series 1 CP Notes (i) maturing on any one
maturity date shall not exceed $25,000,000, and (ii) issued and outstanding
at any time shall not exceed the Available Amount of the Tranche E Letter of
Credit.
(b) Each Series 1 CP Note shall (i) be dated the date of its
issuance (which shall be a Business Day), (ii) be issued on a discount basis,
(iii) be issued only as a bearer or registered note without coupon in an
amount equal to $100,000 or an integral multiple of $1,000 in excess thereof,
(iv) be numbered in the customary manner of the Tranche E Beneficiary, (v)
mature on a Business Day no later than the earlier to occur (as determined in
each case on the date of issuance thereof) of (1) the two hundred seventieth
(270th) calendar day next succeeding the date of issuance thereof and (2)
fifteen (15) calendar days prior to the Scheduled Maturity Date, (vi) not be
subject to automatic extension, renewal or rollover, and (vii) otherwise have
such terms and provisions as shall be set forth in the instructions provided
by the Company to the Tranche E Beneficiary pursuant to the Series 1
Depositary Agreement.
(c) The Company shall not issue or cause to be issued Series 1 CP
Notes if (i) an Event of Default or Unmatured Event of Default shall have
occurred and is continuing or would result from such issuance of Series 1 CP
Notes, or (ii) either the Administrative Agent or the Tranche E Issuing Bank
shall have notified the Company that the Company is not authorized to issue
such Series 1 CP Notes hereunder, and such notice has not been withdrawn by
the Administrative Agent or the Tranche E Issuing Bank, as applicable.
(d) Upon each issuance of Series 1 CP Notes, the Company shall
cause the Tranche E Beneficiary to promptly notify the Tranche E Issuing Bank
of the date of issuance, aggregate Face Amount and maturity dates of all
Series 1 CP Notes then outstanding (including, without limitation, such newly
issued Series 1 CP Notes). The Company shall also cause the Tranche E
Beneficiary to notify the Tranche E Issuing Bank and the Administrative Agent
monthly of (i) the aggregate Face Amount and maturity dates of all Series 1 CP
Notes then outstanding and (ii) the amount of funds in the Series 1 Special
Account, the Series 1 Commercial Paper Account and the Series 1 Letter of
Credit Account, in each case as of the date of the most recent statement for
each such account received by the Company.
Section 6.03. Series 1 Related Accounts. Pursuant to the terms of the
Series 1 Depositary Agreement, the Tranche E Beneficiary shall establish the
following accounts:
(a) A special purpose restricted trust account (the "Series 1
Special Account") in the name of the Tranche E Beneficiary. All payments
under the Tranche E Letter of Credit by the Tranche E Issuing Bank pursuant to
a conforming drawing by the Tranche E Beneficiary shall be made directly to
the Series 1 Special Account. Funds deposited by the Tranche E Issuing Bank
in the Series 1 Special Account shall be held by the Tranche E Beneficiary in
trust for the benefit of the holders of the Series 1 CP Notes (other than
Delayed Notes), and shall be applied by the Tranche E Beneficiary directly to
the payment in full of each such Series 1 CP Note (other than a Delayed Note)
presented to the Tranche E Beneficiary for payment with respect to which
demand was made under the Tranche E Letter of Credit. The Company shall have
no legal, equitable or beneficial interest in or rights to the Series 1
Special Account or the funds held therein.
(b) A special purpose restricted account (the "Series 1 Commercial
Paper Account") in the name of the Company but under the sole dominion and
control of the Tranche E Issuing Bank. All proceeds from the sale of Series 1
CP Notes shall be deposited by the Tranche E Beneficiary into the Series 1
Commercial Paper Account. At the times and in the manner provided in the
Series 1 Depositary Agreement, all funds in the Series 1 Commercial Paper
Account shall be transferred therefrom as follows: (i) first, to the Series 1
Letter of Credit Account, in payment of all outstanding Tranche E
Reimbursement Obligations and other amounts owing to the Tranche E Issuing
Bank under this Article VI, and (ii) second, so long as the Tranche E
Beneficiary has not received notice from the Administrative Agent or the
Tranche E Issuing Bank that an Event of Default or Unmatured Event of Default
has occurred and is continuing, to the Company.
(c) A special purpose restricted account (the "Series 1 Letter of
Credit Account") in the name and for the sole and exclusive benefit of the
Tranche E Issuing Bank. Funds may be deposited into the Series 1 Letter of
Credit Account, for the payment of Tranche E Reimbursement Obligations and
other amounts owing to the Tranche E Issuing Bank under this Article VI,
pursuant to (i) transfers from the Series 1 Commercial Paper Account under
subsection (b) above and (ii) payments made by the Company under Section
6.06(b). Subject to the terms of this Article VI, all amounts held in the
Series 1 Letter of Credit Account may be withdrawn at the sole direction of
the Tranche E Issuing Bank. The Company shall have no legal, equitable or
beneficial interest in or rights to the Series 1 Letter of Credit Account or
the funds held therein.
The Series 1 Depositary Agreement shall provide that the Tranche E Beneficiary
waives any banker's lien and rights of set-off with respect to (i) proceeds
from the issuance of Series 1 CP Notes, (ii) the Series 1 Special Account,
(iii) the Series 1 Commercial Paper Account, (iv) the Series 1 Letter of
Credit Account and (v) for each such account, all funds from time to time on
deposit therein.
Section 6.04. Drawings Under the Tranche E Letter of Credit. (a) The
Tranche E Beneficiary may make the following kinds of drawings under the
Tranche E Letter of Credit:
(i) On the Business Day preceding the Stated Maturity Date of
any outstanding Series 1 CP Notes, a Maturity Drawing for the aggregate Face
Amount of all such Series 1 CP Notes; and
(ii) Upon receipt of an Acceleration Notice from the
Administrative Agent, an Acceleration Drawing for the aggregate Face Amount
of all Series 1 CP Notes (other than Delayed Notes) outstanding on the date
of such receipt and in respect of which no Maturity Drawing has been made.
(b) All drawings under the Tranche E Letter of Credit shall be made
by telecopy or other form of teletransmission to the Tranche E Issuing Bank
from the Tranche E Beneficiary, and shall be in the form of Appendix III or
Appendix IV to the Tranche E Letter of Credit (appropriately completed). Any
such drawing by telecopy or other form of teletransmission shall be sufficient
to effectuate such drawing, and no further presentation of documentation
(including, without limitation, the original or a copy of the Tranche E Letter
of Credit) need be made. The Tranche E Issuing Bank may conclusively rely
upon any such drawing which it believes in good faith to have been sent by the
Tranche E Beneficiary.
(c) In the event of a non-conforming drawing under the Tranche E
Letter of Credit, the Tranche E Issuing Bank shall give prompt notice thereof
to the Tranche E Beneficiary stating (i) the reasons such drawing was
non-conforming and (ii) that the Tranche E Issuing Bank shall, at the option
of the Tranche E Beneficiary, either hold any documents presented in
connection with the drawing at the disposal of the Tranche E Beneficiary or
return such documents to the Tranche E Beneficiary.
Section 6.05. Payments Under the Tranche E Letter of Credit. (a) In the
event of any conforming drawing under the Tranche E Letter of Credit, the
Tranche E Issuing Bank shall, within the time limits set forth in the Tranche
E Letter of Credit, make payment thereof to the Tranche E Beneficiary by
irrevocable deposit to the Series 1 Special Account of the amount of such
drawing in Dollars from the Tranche E Issuing Bank's own funds (and not from
funds obtained from the Company).
(b) The Tranche E Beneficiary shall give the Company prompt
telephonic notice, confirmed promptly thereafter in writing, of each such
drawing under the Tranche E Letter of Credit; provided, however, that failure
by the Tranche E Beneficiary to so notify the Company, or failure by the
Company to receive such notice, shall not in any manner whatsoever (i) alter
the Company's obligations, or the rights of the Tranche E Issuing Bank or of
any Bank, hereunder, or (ii) impose any liability of any sort on the Tranche E
Beneficiary, the Tranche E Issuing Bank or any Bank, or (iii) alter the
Tranche E Issuing Bank's obligations under the Tranche E Letter of Credit to
the Tranche E Beneficiary.
Section 6.06. Reimbursement. (a) The Tranche E Issuing Bank may at any
time and from time to time notify the Tranche E Beneficiary of any amounts
owing to the Tranche E Issuing Bank pursuant to this Article VI. Upon (i)
the incurrence of any Tranche E Reimbursement Obligations, or (ii) with
respect to other amounts owing to the Tranche E Issuing Bank under this
Article VI, the receipt by the Tranche E Beneficiary of notice of such
amounts from the Tranche E Issuing Bank, then in either such case the Tranche
E Beneficiary shall, in accordance with Section 6.03(b) and the Series 1
Depositary Agreement, transfer funds from the Series 1 Commercial Paper
Account to the Series 1 Letter of Credit Account in an amount equal to such
Tranche E Reimbursement Obligations and/or other amounts owing to the Tranche
E Issuing Bank (or, if the funds in the Series 1 Commercial Paper Account are
insufficient to pay all such Tranche E Reimbursement Obligations and/or other
amounts, all funds in such account).
(b) To the extent that on any day the amount of funds transferred
from the Series 1 Commercial Paper Account to the Series 1 Letter of Credit
Account pursuant to Section 6.03(b) and clause (a) above shall be insufficient
to reimburse the Tranche E Issuing Bank for all then outstanding Tranche E
Reimbursement Obligations and other amounts owing under this Article VI, the
Company shall pay to the Series 1 Letter of Credit Account, for the benefit of
the Tranche E Issuing Bank, in Dollars and in immediately available funds, an
amount equal to the amount of such deficiency. With respect to any drawing
under the Tranche E Letter of Credit, such payment shall be made (whether
through the Series 1 Commercial Paper Account or directly by the Company) no
later than 1:00 P.M. (New York time) on the Business Day on which payment of
such drawing is required to be made by the Tranche E Issuing Bank.
(c) The obligation of the Company to pay the Tranche E Issuing Bank
under this Section 6.06 for any draw under the Tranche E Letter of Credit
(each, a "Tranche E Reimbursement Obligation" and collectively, the "Tranche E
Reimbursement Obligations") shall bear interest from the date of the
applicable payment by the Tranche E Issuing Bank at a per annum rate of
interest equal to the Base Rate plus two percent (2%).
(d) The Company hereby agrees to notify the Tranche E Issuing Bank
and the Administrative Agent no later than 12:00 noon (New York time) on any
Business Day that the Tranche E Reimbursement Obligations incurred on such
Business Day shall not be reimbursed in full pursuant to this Section 6.06;
provided, that the giving of such notice shall in no event relieve the Company
of its obligation to pay such Tranche E Reimbursement Obligations in full in
accordance with the terms hereof.
Section 6.07. Participations. (a) As of the Closing Date, each Bank shall
irrevocably and unconditionally purchase and receive from the Tranche E
Issuing Bank, without recourse or warranty, an undivided interest and
participation to the extent of such Bank's Aggregate Pro Rata Share in the
Tranche E Letter of Credit and the Tranche E Reimbursement Obligations
(including, without limitation, all obligations of the Company in each case
with respect thereto, other than amounts owing to the Tranche E Issuing Bank
under Section 9.04, 9.05 and 9.06(b)).
(b) In the event that the Tranche E Issuing Bank makes any payment
under the Tranche E Letter of Credit and the Tranche E Issuing Bank shall not
have been reimbursed in full in accordance with Section 6.06 (or shall have
been notified by the Company pursuant to Section 6.06(d) that it shall not be
so reimbursed in full), the Tranche E Issuing Bank shall promptly notify the
Tranche E Agent, which shall promptly notify each Bank, of such failure, and
each Bank shall promptly and unconditionally pay to the Tranche E Agent for
the account of the Tranche E Issuing Bank, in Dollars and in same day funds,
the amount of such Bank's Aggregate Pro Rata Share of the sum of (i) such
deficiency plus (ii) if payment by the Banks is required on a date following
the date such payments are made by the Tranche E Issuing Bank under the
Tranche E Letter of Credit, one day's interest on such deficiency, accrued at
the Federal Funds Rate, and the Tranche E Agent shall promptly pay such
amount, and any other amounts received by the Tranche E Agent for the Tranche
E Issuing Bank's account pursuant to this Section 6.07(b), to the Tranche E
Issuing Bank. If the Tranche E Agent so notifies such Bank prior to 2:00 P.M.
(New York time) on any Business Day, such Bank shall make available to the
Tranche E Agent for the account of the Tranche E Issuing Bank its Aggregate
Pro Rata Share of such amount on such Business Day in same day funds (or on
the next succeeding Business Day if notice is given after such time). If and
to the extent such Bank shall not have so made its Aggregate Pro Rata Share of
such amount available to the Tranche E Agent for the account of the Tranche E
Issuing Bank, such Bank agrees to pay to the Tranche E Agent for the account
of the Tranche E Issuing Bank forthwith on demand such amount together with
interest thereon, for each day from the date such payment was first due until
such amount is paid to the Tranche E Agent for the account of the Tranche E
Issuing Bank, at the Federal Funds Rate. The failure of any Bank to make
available to the Tranche E Agent for the account of the Tranche E Issuing Bank
its Aggregate Pro Rata Share of any such amount shall not relieve any other
Bank of its obligation here-under to make available to the Tranche E Agent for
the account of the Tranche E Issuing Bank its Aggregate Pro Rata Share of any
such amount on the date such payment is to be made.
(c) Upon payment by one or more Banks under this Section 6.07 in
connection with a drawing under the Tranche E Letter of Credit, the Tranche E
Reimbursement Obligations with respect to such drawing, and any and all
interest accrued thereon in accordance with Section 6.06(c), shall be (i) owed
directly to the Banks (and, to the extent not reimbursed by the Banks, the
Tranche E Issuing Bank), and (ii) payable in Dollars to the Administrative
Agent, for the account of each such Bank (and, to the extent applicable, the
Tranche E Issuing Bank). In the event the Company pays any Tranche E
Reimbursement Obligations on the same day that the Banks reimburse the Tranche
E Issuing Bank therefor (whether in whole or in part), the Company shall
nevertheless owe interest on such Tranche E Reimbursement Obligations for such
day pursuant to Section 6.06(c).
Section 6.08. Termination of Issuance of Series 1 CP Notes. Upon the
occurrence of any of the following events, the Administrative Agent or the
Tranche E Issuing Bank may, and upon the request of the Majority Banks, the
Administrative Agent or the Tranche E Issuing Bank shall, direct the Tranche
E Beneficiary, in writing, with a copy to the Company and the Tranche E
Issuing Bank (if such notice is given by the Administrative Agent) or to the
Administrative Agent (if such notice is given by the Tranche E Issuing Bank),
not to authenticate or deliver any new Series 1 CP Notes under the Series 1
Depositary Agreement:
(a) an Event of Default or Unmatured Event of Default shall have
occurred and be continuing;
(b) the Tranche E Beneficiary shall be in default under any
material provision of the Series 1 Depositary Agreement;
(c) the Tranche E Beneficiary shall, for any reason, cease to
act as depositary and issuing and paying agent under the Series 1 Depositary
Agreement or such Series 1 Depositary Agreement shall, for any reason, cease
to remain in full force and effect;
(d) any of the Commercial Paper Dealers shall fail to pay any
amounts due and payable under its Dealer Agreement with the Company relating
to the Series 1 CP Notes;
(e) the Tranche E Beneficiary or any of the Commercial Paper
Dealers shall fail to pay any principal of or premium or interest on any Debt
which is outstanding in a principal amount in excess of Ten Million Dollars
($10,000,000) (or the equivalent thereof in another currency or currencies)
in the aggregate of the Tranche E Beneficiary or such Commercial Paper Dealer
(as the case may be), 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 any other
event shall occur or condition shall exist under any agreement or instrument
relating to any such Debt 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 to permit the acceleration of,
the maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof;
(f) the Tranche E Beneficiary or any of the Commercial Paper
Dealers 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 Tranche E Beneficiary or any of the Commercial
Paper Dealers seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or 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,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but
not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall
occur; or the Tranche E Beneficiary or any of the Commercial Paper Dealers
shall take any corporate action to authorize any of the actions set forth
above in this subsection (f); or
(g) any judgment or order for the payment of money in excess of
Ten Million Dollars ($10,000,000) (or the equivalent thereof in another
currency or currencies) shall be rendered against the Tranche E Beneficiary
or any of the Commercial Paper Dealers and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order or (ii)
there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
With respect to any of the events described in clauses (b) through (g) above,
if the Company effectively removes the Tranche E Beneficiary or such
defaulting Commercial Paper Dealer, as the case may be, or accepts the written
resignation of the Tranche E Beneficiary or defaulting Commercial Paper
Dealer, as the case may be, and appoints a successor Tranche E Beneficiary or
Commercial Paper Dealer, as the case may be (which successor must be consented
to in writing by the Majority Banks and the Tranche E Issuing Bank), then the
Company may, subject to the other terms and conditions of this Agreement,
direct such successor Tranche E Beneficiary (or in the case of a Commercial
Paper Dealer default, the existing Tranche E Beneficiary) in writing, with a
copy to the Administrative Agent and the Tranche E Issuing Bank, to
authenticate and deliver new Series 1 CP Notes in accordance with the Series 1
Depositary Agreement.
Section 6.09. Removal and Appointment of Commercial Paper Dealer. With the
prior written consent of the Tranche E Issuing Bank, the Company may from
time to time remove any of the existing Commercial Paper Dealers and appoint
a successor Commercial Paper Dealer. The Company shall make such request in
writing to the Administrative Agent which shall promptly notify the Tranche E
Issuing Bank and each Bank thereof. The Tranche E Issuing Bank agrees to
respond to such written request of the Company within ten (10) Business Days
of the Administrative Agent's receipt of such request. If the prior written
consent of the Tranche E Issuing Bank is not obtained such successor may not
be appointed. If the prior written consent of the Tranche E Issuing Bank is
obtained, the requested successor may be appointed subject to the review and
approval by the Administrative Agent (which approval shall not be unreasonably
withheld) and the Tranche E Issuing Bank of the form of the Dealer Agreement
between the Company and such successor and such other matters as the
Administrative Agent deems appropriate.
ARTICLE VII
Section 7.01. The Multicurrency Loans. Each Multicurrency Bank severally
and not jointly agrees, on the terms and conditions hereinafter set forth, to
make Multicurrency Loans to the Multicurrency Borrowers from time to time on
any Business Day during the period from the date hereof until the Termination
Date in an aggregate amount (converted to the Dollar Equivalent thereof) not
to exceed at any time outstanding the Dollar amount of such Multicurrency
Bank's Multicurrency Revolver Pro Rata Share of the Tranche F Commitment.
Each Multicurrency Borrowing shall consist of Multicurrency Loans comprised
of Eurocurrency Rate Loans denominated in a single Permitted Currency, in an
aggregate amount equal to an integral multiple of 100,000 units in such
Permitted Currency and (converted to the Dollar Equivalent thereof) equal to
or greater than $5,000,000, and shall be made on the same day to the same
Multicurrency Borrower by the Multicurrency Banks ratably in accordance with
their respective Multicurrency Revolver Pro Rata Shares; provided, that in the
case of any such Multicurrency Borrowing, the proceeds of which shall be used
to repay a then maturing Multicurrency Borrowing denominated in the same
Permitted Currency, such new Multicurrency Borrowing may, subject to the terms
and conditions otherwise set forth herein, be in an aggregate principal amount
equal to the aggregate principal amount of such maturing Multicurrency
Borrowing. Within the limits of the Tranche F Commitment and subject to the
terms of this Agreement, the Multicurrency Borrowers may borrow, prepay
pursuant to Section 7.06 and reborrow under this Section 7.01. For the
purposes of determining compliance with this Section 7.01, the Dollar
Equivalent of a Multicurrency Loan in a Permitted Currency other than Dollars
shall be determined, in accordance with Section 7.02, by the Tranche F Agent
immediately prior to the issuance by the Company (on behalf of itself or
another Multicurrency Borrower) of the Notice of Multicurrency Borrowing
requesting such Multicurrency Loan, and such Dollar Equivalent shall remain in
effect at all times during the Interest Period with respect to such
Multicurrency Loan, notwithstanding any fluctuation in exchange rates during
such Interest Period.
Section 7.02. Making the Multicurrency Loans. (a) Each Multicurrency
Borrowing shall be made on written notice (each, a "Notice of Multicurrency
Borrowing") from the Company (on behalf of the applicable Multicurrency
Borrower) to the Tranche F Agent, given not later than 11:00 A.M. (London
time) on the third Business Day prior to the date of such proposed
Multicurrency Borrowing. Each Notice of Multicurrency Borrowing shall be by
telecopier or other form of teletransmission, in substantially the form of
Exhibit F hereto, specifying therein the requested (i) Multicurrency
Borrower, (ii) date of such Multicurrency Borrowing (which shall be
Business Day), (iii) the Permitted Currency in which such Multicurrency
Borrowing is to be denominated, (iv) the Interest Period for such
Multicurrency Borrowing and (v) the aggregate amount of such Multicurrency
Borrowing. The Company shall request, within one-half hour prior to the
issuance of the applicable Notice of Multicurrency Borrowing, the advice of
the Tranche F Agent as to the Dollar Equivalent of the amount of such
Multicurrency Borrowing, and the Company shall specify such amount in such
Notice of Multicurrency Borrowing. In lieu of delivering above-described
Notice of Multicurrency Borrowing, the Company (on behalf the applicable
Multicurrency Borrower) may give the Tranche F Agent telephonic notice of any
proposed Multicurrency Borrowing by the time required under Section 7.02;
provided, that the Company agrees to confirm such notice in
writing by facsimile transmission of an executed Notice of Multicurrency
Borrowing to the Tranche F Agent no later than 5:00 P.M. (London time) on the
same day; provided further, however, that any failure by the Company to so
confirm any telephonic notice shall in no event impair the validity of such
telephonic notice.
(b) Promptly after receipt of a Notice of Multicurrency Borrowing
under Section 7.02(a) (or telephonic notice in lieu thereof), the Tranche F
Agent shall notify each Multicurrency Bank by telecopy or other form of
teletransmission of the proposed Multicurrency Borrowing. Each Multicurrency
Bank shall, before 11:00 A.M. (London time) on the date of such Multicurrency
Borrowing, make the amount of its Multicurrency Loan available to the Tranche
F Agent, at its address referred to in Section 15.02, in the requested
Permitted Currency and in same day funds. After the Tranche F Agent's receipt
of such funds and upon fulfillment of the applicable conditions set forth in
Section 10.02, the Tranche F Agent will make such funds available to the
applicable Multicurrency Borrower at the Tranche F Agent's aforesaid address.
(c) Anything hereinabove to the contrary notwithstanding, if any
Multicurrency Bank shall, not later than 10:00 A.M. (London time) two Business
Days before the date of any requested Multicurrency Borrowing, notify the
Tranche F Agent that such Multicurrency Bank is not satisfied that deposits in
the relevant Permitted Currency will be freely available to it in the relevant
amount and for the relevant Interest Period, the right of the Multicurrency
Borrowers to request Multicurrency Loans in such Permitted Currency from such
Multicurrency Bank as part of such Multicurrency Borrowing or any subsequent
Multicurrency Borrowing shall be suspended until such Multicurrency Bank shall
notify the Tranche F Agent that the circumstances causing such suspension no
longer exist, and, at the option of the applicable Multicurrency Borrower,
either (i) the applicable Notice of Multicurrency Borrowing may be withdrawn,
and such Multicurrency Borrowing shall not be made, or (ii) the Multicurrency
Loan to be made by such Multicurrency Bank as part of such Multicurrency
Borrowing (and the Multicurrency Loan to be made by such Multicurrency Bank as
part of any subsequent Multicurrency Borrowing in respect of which such
Permitted Currency shall have been requested during such period of suspension)
shall be a Eurocurrency Rate Loan denominated in Dollars and having an
Interest Period coextensive with the Interest Period in effect in respect of
all other Multicurrency Loans comprising a part of such Multicurrency
Borrowing. If the applicable Multicurrency Borrower elects to withdraw its
Notice of Multicurrency Borrowing, such Multicurrency Bank shall be liable to
each other Multicurrency Bank for any damages suffered on account thereof of a
nature described in Section 9.04(a)(ii). The Tranche F Agent shall, upon
becoming aware that the circumstances causing any such suspension no longer
apply, promptly so notify the Company, provided that the failure of the
Tranche F Agent to so notify the Company shall not impair the rights of the
Multicurrency Banks under this Section 7.02(c) or expose the Tranche F Agent
to any liability.
(d) Each Notice of Multicurrency Borrowing (or telephonic notice in
lieu thereof) shall be irrevocable and binding on the Multicurrency Borrower
on whose behalf it shall have been submitted. The applicable Multicurrency
Borrower shall indemnify each Multicurrency Bank against any loss, cost or
expense incurred by such Multicurrency Bank as a result of any failure to
fulfill on or before the date specified in such Notice of Multicurrency
Borrowing for such Multicurrency Borrowing (or telephonic notice in lieu
thereof) the applicable conditions set forth in Article X, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Multicurrency Bank to fund the Multicurrency Loan to be
made by such Multicurrency Bank as part of such Multicurrency Borrowing when
such Multicurrency Loan, as a result of such failure, is not made on such
date.
(e) Unless the Tranche F Agent shall have received notice from a
Multicurrency Bank prior to the date of any Multicurrency Borrowing that such
Multicurrency Bank will not make available to the Tranche F Agent such
Multicurrency Bank's ratable portion of such Multicurrency Borrowing, the
Tranche F Agent may assume that such Multicurrency Bank has made such portion
available to the Tranche F Agent on the date of such Multicurrency Borrowing
in accordance with subsection (b) of this Section 7.02 and the Tranche F Agent
in its sole discretion may, in reliance upon such assumption, make available
to the applicable Multicurrency Borrower on such date a corresponding amount.
If and to the extent that such Multicurrency Bank shall not have so made such
ratable portion available to the Tranche F Agent, such Multicurrency Bank and
such Multicurrency Borrower severally agree to repay to the Tranche F Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to such Multicurrency
Borrower until the date such amount is repaid to the Tranche F Agent, at (i)
in the case of such Multicurrency Borrower, the interest rate applicable at
the time to Multicurrency Loans comprising such Multicurrency Borrowing and
(ii) in the case of such Multicurrency Bank, the Federal Funds Rate. If such
Multicurrency Bank shall repay to the Tranche F Agent such corresponding
amount, such amount so repaid shall constitute such Multicurrency Bank's
Multicurrency Loan as part of such Multicurrency Borrowing for purposes of
this Agreement.
(f) The failure of any Multicurrency Bank to make the Multicurrency
Loan to be made by it as part of any Multicurrency Borrowing shall not relieve
any other Multicurrency Bank of its obligation, if any, hereunder to make its
Multicurrency Loan on the date of such Multicurrency Borrowing, but no
Multicurrency Bank shall be responsible for the failure of any other
Multicurrency Bank to make the Multicurrency Loan to be made by such other
Multicurrency Bank on the date of any Multicurrency Borrowing.
Section 7.03. Tranche F Facility Fee. On behalf of itself and the other
Multicurrency Borrowers, the Company agrees to pay to the Administrative
Agent, for the account of each Multicurrency Bank, a facility fee in an
amount equal to two-tenths of one percent (0.20%) per annum applied to each
Multicurrency Bank's Multicurrency Revolver Pro Rata Share of the average
daily Tranche F Commitment (irrespective of usage) from the Closing Date (or,
if applicable, from the effective date specified in an Assignment and
Acceptance pursuant to which it became a Multicurrency Bank hereunder) until
the Termination Date, payable in arrears on the last Business Day of each
calendar quarter, commencing December 31, 1994, and on the Termination Date.
Section 7.04. Repayment. Each Multicurrency Borrower shall repay the
principal amount of each Multicurrency Loan made to it on the earlier of (i)
the last day of the Interest Period for such Multicurrency Loan or (ii) the
Termination Date.
Section 7.05. Interest. Subject to Section 9.07, each Multicurrency
Borrower shall pay interest on the unpaid principal amount of each
Multicurrency Loan made to it and owing to each Multicurrency Bank from the
date of such Multicurrency Loan until such principal amount shall be paid in
full, at a rate per annum at all times during each Interest Period for such
Multicurrency Loan equal to the sum of the Eurocurrency Rate for such
Interest Period plus 0.35% per annum, 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 such Interest Period every
three months from the first day of such Interest Period. If on any day a
Multicurrency Loan is outstanding with respect to which effective notice has
not been delivered to the Tranche F Agent in accordance with the terms hereof
specifying the basis for determining the rate of interest applicable thereto
(including, without limitation, Eurocurrency Rate Loans which, following the
end of the Interest Period with respect thereto, are not reborrowed hereunder
as Eurocurrency Rate Loans), then the Tranche F Agent shall calculate the
interest thereon by (i) assigning an Interest Period to such Multicurrency
Loan of one month and determining the Eurocurrency Rate with respect thereto,
or (ii) if the Eurocurrency Rate cannot be determined, after consultation
with the Company, designating a rate or rates of interest,in lieu of the
Eurocurrency Rate, which reasonably approximates the Banks'
costs of funding the Multicurrency Loans (and interest shall accrue on each
such Multicurrency Loan at 0.35% per annum plus either such Eurocurrency Rate
or such other rate, as determined pursuant to clause (i) or (ii) above,
respectively).
Section 7.06. Prepayments. Each Multicurrency Borrower may, upon at least
three Business Days' prior written notice to the Tranche F Agent, prepay the
outstanding principal amounts of its Multicurrency Loans comprising part of
the same Multicurrency Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount equal to an integral multiple of 100,000 units in
the applicable Permitted Currency and (converted to the Dollar Equivalent
thereof calculated on the date of prepayment) equal to or greater than
$5,000,000 (or, if less, the aggregate principal amount of such Multicurrency
Borrowing) and (y) any such prepayment shall be made on the last day of an
Interest Period for such Multicurrency Loans, or otherwise only upon payment
of the amounts described in Section 9.04(a)(ii). Any notice of prepayment
given to the Tranche F Agent under this Section 7.06 shall be received by the
Tranche F Agent no later than 10:00 A.M. (London time) on the date such
notice must be given, and shall specify the date of prepayment and the
aggregate principal amount of the prepayment. If a notice of prepayment has
been delivered as provided herein, the principal amount of the Multicurrency
Loans specified in such notice shall become due and payable on the prepayment
date specified in such notice.
SECTION 7.07. Removal of a Multicurrency Bank; Additional
Removal of a Multicurrency Bank; Additional Multicurrency Banks. (a) In the
event that a Multicurrency Bank delivers a notice to the Tranche F Agent
pursuant to Section 7.02(c) then, unless such Multicurrency Bank has
theretofore taken steps to remove or cure, and has removed or cured, the
circumstances described in such notice, the Company may pay to such
Multicurrency Bank an amount equal to the outstanding principal amount of such
Multicurrency Bank's Multicurrency Loans plus any accrued but unpaid interest
thereon, and, if applicable, accrued but unpaid fees and expenses owed under
or in connection with this Tranche F (including, without limitation, under
Section 9.04(a)(ii)), and upon such payment (i) such Multicurrency Bank shall
cease to be a Multicurrency Bank hereunder, (ii) the portion of such
Multicurrency Bank's Commitment which had been allocated to Tranche F shall be
deemed reallocated to Tranche D, and (iii) the Tranche F Commitment and the
Multicurrency Revolver Pro Rata Shares of the Multicurrency Banks shall be
reduced accordingly.
(b) With the prior written consent of the Administrative Agent and
the Tranche F Agent, any Bank may agree, upon the request of the Company, to
become a Multicurrency Bank hereunder. Each such Bank shall execute a written
agreement, in form and substance satisfactory to the Administrative Agent and
the Tranche F Agent, setting forth its agreement to become a Multicurrency
Bank hereunder and to be bound by the terms and provisions hereof applicable
thereto, and acknowledging that its full Commitment shall be available for
allocation to Tranche F. Upon the execution and delivery of such agreement,
such Bank shall be deemed automatically to have become a Multicurrency Bank;
provided, that if such Bank's unused Commitment under Tranche D is
insufficient to effect the reallocation described in the following sentence,
such agreement shall be null and void and such Bank shall not become a
Multicurrency Bank hereunder. The Administrative Agent shall allocate a pro
rata portion of such Bank's Commitment under Tranche D to Tranche F, calculate
the new Domestic Revolver Pro Rata Shares and Multicurrency Revolver Pro Rata
Shares of the Banks, and notify each other Bank in writing of such Bank's
becoming a Multicurrency Bank and of the modified Applicable Pro Rata Shares
as a result thereof. The Company and each other Multicurrency Borrower shall,
within five Business Days thereafter, execute and deliver to the
Administrative Agent, for delivery to such Bank, Multicurrency Notes
evidencing such Bank's Multicurrency Loans and Tranche F Commitment hereunder.
Notwithstanding the foregoing, the applicable Multicurrency Revolver Pro Rata
Shares of outstanding Multicurrency Loans shall not be adjusted, and such Bank
shall only fund Multicurrency Loans made on or after the date it becomes a
Multicurrency Bank hereunder.
Section 7.08. Guaranty.
(a) Guaranty. (i) For value received and in consideration of any
loan, advance or financial accommodation of any kind whatsoever heretofore,
now or hereafter made, given or granted to the other Multicurrency Borrowers
by the Banks, the Company unconditionally and irrevocably guarantees for the
benefit of the Agents and each of the Banks the full and prompt payment and
performance when due, whether at maturity or earlier, by reason of
acceleration or otherwise, and at all times thereafter, of all of the other
Multicurrency Borrowers' Obligations (including, without limitation, interest
accruing following the filing of a bankruptcy petition by or against any such
Multicurrency Borrower, at the applicable rate specified herein, whether or
not such interest is allowed as a claim in bankruptcy).
(ii) At any time after the occurrence of an Event of Default, the
Company shall pay to the Administrative Agent, for the benefit of the Agents
and the Banks, on demand and in immediately available funds, the full amount
of the other Multicurrency Borrowers' Obligations (including any portion
thereof which is not yet due and payable). The Company further agrees to pay
to the Administrative Agent and reimburse the Administrative Agent for, on
demand and in immediately available funds, (1) all losses (including, without
limitation, lost profits), reasonable fees, costs and expenses (including,
without limitation, all court costs and attorneys' and paralegals' fees, costs
and expenses) paid or incurred by the Agents or any of the Banks in: (x)
endeavoring to collect all or any part of the other Multicurrency Borrowers'
Obligations from, or in prosecuting any action against, any such Multicurrency
Borrower relating hereto or the transactions contemplated hereby; (y) taking
any action with respect to any security or collateral securing such
Obligations or the Company's obligations under this Section 7.08; and (z)
preserving, protecting or defending the enforceability of, or enforcing, the
terms of this Section 7.08 or their respective rights hereunder (all such
costs and expenses are hereinafter referred to as the "Expenses") and (2)
interest on (x) the other Multicurrency Borrowers' Obligations which do not
constitute interest, (y) to the extent permitted by applicable law, such
Obligations which constitute interest, and (z) the Expenses, from the date of
demand under this Section 7.08 until paid in full at the per annum rate of
interest described in Section 9.07(a) hereof. The Company hereby agrees that
this Section 7.08 constitutes an absolute guaranty of payment and is not a
guaranty of collection.
(b) Obligations Unconditional. The Company hereby agrees that its
obligations under this Section 7.08 shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance or subordination of any
of the other Multicurrency Borrowers' Obligations or any or any portion of
the Credit Documents;
(ii) any change to the corporate existence, structure or ownership
of any other Multicurrency Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any other Multicurrency
Borrower or its assets;
(iii) any law, regulation or order of any jurisdiction affecting any
term of the Obligations of any other Multicurrency Borrower or any of the
rights of any Agent, any Bank or any Issuing Bank hereunder with respect to
the other Multicurrency Borrowers;
(iv) the existence of any claim, set-off or other rights which the
Company may have at any time against any other Multicurrency Borrower, any
Agent, any Bank or any other Person, whether in connection herewith or any
unrelated transactions, provided, that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;
(v) the absence of any attempt by, or on behalf of, any Bank or any
Agent to collect, or to take any other action to enforce, all or any part of
the other Multicurrency Borrowers' Obligations whether from or against the
other Multicurrency Borrowers, any other guarantor of such Obligations or any
other Person;
(vi) the election of any remedy by, or on behalf of, any Bank or any
Agent with respect to all or any part of the other Multicurrency Borrowers'
Obligations;
(vii) any change in the time, manner or place of payment of, or in
any other term of, or any increase in the amount of, all or any of the other
Multicurrency Borrowers' Obligations, or the waiver, consent, extension,
forbearance or granting of any indulgence by, or on behalf of, any Bank or
any Agent with respect to any provision of any of the Credit Documents;
(viii) the failure of any Agent to take any steps to perfect and
maintain its security interest in, or to preserve its rights to, any security
or collateral for the other Multicurrency Borrowers' Obligations; or
(ix) any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of the other Multicurrency Borrowers or any
other guarantor of the other Multicurrency Borrowers' Obligations.
(c) Enforcement; Application of Payments. Upon the occurrence and
during the continuance of an Event of Default, the Administrative Agent may
proceed directly and at once, without notice, against the Company to obtain
performance of and to collect and recover the full amount, or any portion, of
the other Multicurrency Borrowers' Obligations, without first proceeding
against the other Multicurrency Borrowers, any other guarantor of such
Obligations or any other Person, or against any security or collateral for
such Obligations. Subject only to the terms and provisions of this Agreement,
the Administrative Agent shall have the exclusive right to determine the
application of payments and credits, if any, from the Company, any other
Multicurrency Borrower, any guarantor or from any other Person on account of
such Obligations or any other liability of the Company to any Bank.
(d) Waivers. (i) To the extent permitted by applicable law, the
Company hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of receivership or bankruptcy of any other
Multicurrency Borrower, protest or notice with respect to the other
Multicurrency Borrowers' Obligations, all setoffs and counterclaims and all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance of this
Section 7.08 or any other guaranty of such Obligations, the benefits of all
statutes of limitation, the benefits of any statute the effect of which would
require any Agent or any Bank to first proceed against any other Multicurrency
Borrower, any other guarantor of such Obligations or any other Person to
enforce or collect all or any portion of such Obligations before proceeding
against the Company for the enforcement of the Company's obligations and
indebtedness under this Section 7.08, and all other demands whatsoever (and
shall not require that the same be made on the other Multicurrency Borrowers
as a condition precedent to the Company's obligations hereunder), and
covenants that this Section 7.08 will not be discharged, except by complete
and indefeasible payment in full (in cash) and the termination of this
Agreement pursuant to the terms hereof. The Company further waives all
notices of the existence, creation or incurring of new or additional
indebtedness, arising either from additional loans extended to the other
Multicurrency Borrowers or otherwise, and also waives all notices that the
principal amount, or any portion thereof, and/or any interest on any
instrument or document evidencing all or any part of the other Multicurrency
Borrowers' Obligations is due, notices of any and all proceedings to collect
from the maker, any endorser or any other guarantor of all or any part of such
Obligations, or from any other Person, and, to the extent permitted by law,
notices of exchange, sale, surrender or other handling of any security or
collateral given to any Agent to secure payment of all or any part of such
Obligations. The Company further waives any requirement that any Agent or any
Bank protect, secure, perfect or insure any security interest or exhaust any
right to take action against the other Multicurrency Borrowers or any other
Person or any collateral.
(ii) The Banks, either themselves or acting through the Agents, are
hereby authorized, without notice or demand and without affecting the
liability of the Company hereunder, from time to time, (1) to renew, extend,
accelerate or otherwise change the time for payment of, or other terms
relating to, all or any part of the other Multicurrency Borrowers'
Obligations, or to otherwise modify, amend or change the terms of any of the
Credit Documents; (2) to accept partial payments on all or any part of such
Obligations; (3) to take and hold security or collateral for the payment of
all or any part of such Obligations, this Section 7.08, or any other
guaranties of all or any part of such Obligations or other liabilities of the
Multicurrency Borrowers or any other guarantor; (4) to exchange, enforce,
waive and release any such security or collateral; (5) to apply such security
or collateral and direct the order or manner of sale thereof as in their
discretion they may determine; or (6) to settle, release, exchange, enforce,
waive, compromise or collect or otherwise liquidate all or any part of such
Obligations, the obligations under this Section 7.08, any other guaranty of
all or any part of such Obligations, and any security or collateral for such
Obligations or for any such guaranty. Any of the foregoing may be done in any
manner, without affecting or impairing the obligations of the Company
hereunder.
(e) Subrogation. Until the Obligations of the other Multicurrency
Borrowers have been paid in full, the Company (i) shall have no right of
subrogation with respect to such Obligations and (ii) waives any right to
enforce any remedy which the Banks or the Agents (or any of them) now have or
may hereafter have against the other Multicurrency Borrowers, any endorser or
any guarantor of all or any part of such Obligations or any other Person, and
the Company waives any benefit of, and any right to participate in, any
security or collateral given to the Banks and the Agents (or any of them) to
secure the payment or performance of all or any part of the other
Multicurrency Borrowers' Obligations or any other liability of the other
Multicurrency Borrowers to the Banks.
(f) Subordination. The Company agrees that any and all claims of
the Company against the other Multicurrency Borrowers, any endorser or any
other guarantor of all or any part of the other Multicurrency Borrowers'
Obligations, or against any of their respective properties, shall be
subordinate and subject in right of payment to the prior payment, in full and
in cash, of all of the other Multicurrency Borrowers' Obligations.
(g) Effectiveness; Termination. The provisions of this Section
7.08 shall become effective upon the execution hereof and shall continue in
full force and effect and may not be terminated or otherwise revoked until the
other Multicurrency Borrowers' Obligations shall have been indefeasibly paid
in full (in cash) and discharged and this Agreement has been terminated in
accordance with its terms.
ARTICLE VIII
Section 8.01. Reallocation of the Tranche Commitments.
(a) Notice of Reallocation. The Company may from time to time
request the reallocation of the Tranche Commitments among the various Tranches
and/or the reduction of one or more Tranche Commitments without a reallocation
thereof to another Tranche (including, without limitation, any termination of
a Tranche Commitment under Section 8.03 below) (each such reallocation and/or
reduction being a "Reallocation") by written notice to the Administrative
Agent substantially in the form of Exhibit H hereto (each, a "Notice of
Reallocation"); provided, that each Reallocation with respect to Tranche F
shall consist only of a reallocation of the Commitments of the Multicurrency
Banks to or from Tranche D pro rata in accordance with their respective
Multicurrency Revolver Pro Rata Shares. Each Reallocation shall be pro rata
among the Banks (except as set forth in the proviso to the preceding sentence)
and shall result in a change in each Tranche Commitment subject thereto in an
amount equal to an integral multiple of $1,000,000. Each Notice of
Reallocation shall be irrevocable, shall specify the date (which shall be a
Business Day) that such Reallocation is to become effective (the "Reallocation
Effective Date"), and shall be delivered at least five (5) Business Days prior
to such Reallocation Effective Date. Promptly after receipt of a Notice of
Reallocation, the Administrative Agent shall notify each Bank and each Issuing
Bank by telecopy or other teletransmission of the proposed Reallocation and
Reallocation Effective Date.
(b) Conditions Precedent to Reallocations. Each Reallocation shall
be subject to the condition precedent that each of the following conditions
shall be satisfied as of the Reallocation Effective Date of and after giving
effect to such Reallocation:
(i) No Event of Default or Unmatured Event of Default shall
have occurred and be continuing or would result from such Reallocation;
(ii) Each of the Tranche A Commitment, the Tranche B
Commitment and the Tranche C Commitment shall equal or exceed the sum of (1)
the unpaid Reimbursement Obligations under such Tranche plus (2) the Foreign
Ancillary Obligations under such Tranche;
(iii) The Tranche D Commitment (computed without regard to any
Bid Rate Reduction) shall equal or exceed the aggregate Syndicated Loans and
Bid Rate Loans outstanding hereunder;
(iv) The Tranche E Commitment shall equal or exceed the sum of
(1) the unpaid Reimbursement Obligations under such Tranche plus (2) the
aggregate Face Amount of all outstanding Series 1 CP Notes;
(v) The Tranche F Commitment shall equal or exceed the
aggregate Multicurrency Loans (converted to the Dollar Equivalent thereof)
outstanding hereunder;
(vi) The conditions precedent contained in Section 10.02 shall
be satisfied; and
(vii) With respect to any Reallocation which would result in
the increase of a Letter of Credit Tranche Commitment, the applicable Issuing
Bank shall have consented in writing to such increase.
(c) Reallocation of the Letter of Credit Tranche Commitments.
(i) The Issuing Bank with respect to each Letter of Credit
Tranche Commitment affected by a Reallocation shall amend its Letter of Credit
(or, if applicable, issue a new Letter of Credit) in accordance with the terms
of this Section 8.01(c).
(ii) With respect to a Reallocation affecting the Tranche A
Commitment, the Tranche B Commitment and/or the Tranche C Commitment, and
subject to the conditions precedent set forth in Section 8.01(b), the European
Issuing Bank, the Western Pacific Issuing Bank and/or the Asian Issuing Bank,
as applicable, shall issue amendments to its Letters of Credit in each case
substantially in the form of Appendix I thereto, changing the aggregate Stated
Amount thereof to an amount equal to the Tranche A Commitment, the Tranche B
Commitment and/or the Tranche C Commitment, respectively, after giving effect
to such Reallocation. Each such amendment shall be issued and be effective as
of the Reallocation Effective Date.
(iii) With respect to a Reallocation affecting the Tranche E
Commitment, the Company shall, simultaneously with its delivery of a Notice of
Reallocation, deliver to the Administrative Agent and the Tranche E Issuing
Bank (1) a Request for Change in Stated Amount duly executed by the Company,
and (2) if such Reallocation shall result in a reduction of the Tranche E
Commitment, a Reduction Certificate duly executed by the Company and
acknowledged by the Tranche E Beneficiary. Following receipt thereof and
subject to the conditions precedent set forth in Section 8.01(b), the Tranche
E Issuing Bank shall change the Stated Amount of the Tranche E Letter of
Credit to an amount equal to the Tranche E Commitment, after giving effect to
the Reallocation. The Tranche E Issuing Bank may give effect to such change
by, at its option, either issuing (A) an amendment to the Tranche E Letter of
Credit substantially in the form of Appendix VII thereto and dated the
Reallocation Effective Date or (B) in full substitution for the old Tranche E
Letter of Credit, a substitute irrevocable transferable letter of credit,
dated the Reallocation Effective Date and having terms (other than the Stated
Amount) identical to the old Tranche E Letter of Credit. The Tranche E
Issuing Bank shall not issue a substitute letter of credit in accordance with
clause (B) above until the Tranche E Beneficiary has surrendered the old
Tranche E Letter of Credit to the Tranche E Issuing Bank; upon such issuance
the old Tranche E Letter of Credit shall be cancelled and the substitute
letter of credit shall be the Tranche E Letter of Credit hereunder.
(iv) Each Issuing Bank may assume that the conditions
precedent contained in Section 8.01(b) are satisfied unless it has received
notice to the contrary from the Company, any other Multicurrency Borrower, any
Agent, any Issuing Bank, any Bank or any Beneficiary prior to the Reallocation
Effective Date, and any Letter of Credit amended or issued in accordance with
such assumption and otherwise in accordance with this Section 8.01(c) shall be
a Letter of Credit entitled to the benefits of this Agreement notwithstanding
any failure to actually satisfy any such conditions precedent.
Section 8.02. Reduction of the Commitments. Pursuant to the terms and
subject to the conditions of Section 8.01, the Company may terminate in whole
or reduce ratably in part the Commitments of the Banks by requesting a
Reallocation pursuant to which one or more Tranche Commitments are reduced
without the reallocation thereof in full to another Tranche; provided, that
(i) all requirements set forth in Section 8.01 (except, solely with respect
to a Reallocation under which no Tranche Commitments are increased, the
conditions precedent set forth in Sections 8.01(b)(i) and (vi)) must be
satisfied, and (ii) each partial reduction shall be in the aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof. The
aggregate reduction of the Commitments shall be permanent and may not be
reinstated.
Section 8.03. Termination and Reinstatement of a Tranche Commitment.
Pursuant to the terms and subject to the conditions of Section 8.01, the
Company may terminate in whole a Tranche Commitment and the related Tranche
by requesting a Reallocation pursuant to which such Tranche Commitment is
reduced to zero; provided, that subject to the appointment of a new Tranche
Agent and, if applicable, Issuing Bank and Beneficiaries (each of which shall
be acceptable to the Administrative Agent, the Bid Agent and the Company)
pursuant to the terms of this Agreement, the Company may thereafter reinstate
such Tranche by requesting a Reallocation pursuant to which the Tranche
Commitment thereof is increased to an amount greater than zero.
ARTICLE IX
Section 9.01. Payments and Computations.
(a) Manner and Timing of Payments. The Company shall make each
payment owing to the Banks under this Agreement (other than in respect of
Multicurrency Loans) not later than 11:00 A.M. (New York time) on the day when
due in Dollars to the Administrative Agent or the Tranche D Agent, as
applicable, at such Person's address referred to in Section 15.02 in same day
funds. The Company and the other Multicurrency Borrowers shall make each
payment owing to the Banks under this Agreement in respect of Multicurrency
Loans not later than 11:00 A.M. (London time) on the day when due in the
applicable Permitted Currency to the Tranche F Agent at its address referred
to in Section 15.02 in same day funds. The Administrative Agent, the Tranche
D Agent or the Tranche F Agent, as applicable, will promptly thereafter cause
to be distributed like funds relating to the payment of principal, interest or
fees ratably to the Banks in accordance with their Applicable Pro Rata Shares
(other than amounts payable pursuant to Section 5.04, 7.03, 9.04, 9.05,
9.06(b) or 9.07(b)) 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. Upon
the Administrative Agent's acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 15.06(d), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent, the Tranche D Agent and
the Tranche F Agent, as applicable, shall make all payments under this
Agreement in respect of the interest assigned thereby to the Bank assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) Rights of Set-Off. The Company and the Multicurrency Borrowers
each hereby authorizes each Bank, if and to the extent payment owed to such
Bank is not made when due hereunder, to charge from time to time against any
or all of the Company's and the other Multicurrency Borrowers' accounts with
such Bank any amount so due. Each Bank agrees to notify the Company at least
five (5) Business Days prior to any such charge made by such Bank, provided
that the failure to give such notice shall not affect the validity of such
charge.
(c) Computation of Interest and Fees. All computations of interest
and fees shall be made by the Administrative Agent, the Tranche D Agent, the
Tranche F Agent or, with respect to interest under Section 9.07(b), by the
applicable Bank, 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, the Tranche D Agent, the Tranche F
Agent or, in the case of Section 9.07(b), by a Bank, of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Payment on Business Days. Whenever any payment hereunder 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 Loans to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day (and such reduction of time shall in such case be excluded from
the computation of payment of interest or fee, as the case may be).
(e) Distributions to Banks. Unless the Administrative Agent, the
Tranche D Agent or the Tranche F Agent, as applicable, shall have received
notice from the Company or another Multicurrency Borrower prior to the date on
which any payment is due to the Banks hereunder that the Company or a
Multicurrency Borrower will not make such payment in full, such Agent may
assume that the Company or such other Multicurrency Borrower has made such
payment in full to such Agent on such date and such Agent in its sole
discretion 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 the Company or such other Multicurrency Borrower shall
not have so made such payment in full to the applicable Agent, each Bank shall
repay to such 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 such
Agent, at the Federal Funds Rate.
(f) Apportionment of Payments. (i) So long as no Event of Default
exists, all payments of principal and interest in respect of a Borrowing of
outstanding Loans, all payments of the fees described herein, and all payments
in respect of any other Obligations shall be allocated among such of the Banks
as are entitled thereto as follows (unless otherwise expressly provided
elsewhere herein): (1) if made with respect to the Syndicated Loans, to the
Banks in accordance with each Bank's Domestic Revolver Pro Rata Share for such
Syndicated Loan, (2) if made with respect to the Multicurrency Loans, to the
Multicurrency Banks in accordance with each Multicurrency Bank's Multicurrency
Revolver Pro Rata Share for such Multicurrency Loan, (3) if made with respect
to the Bid Rate Loans, to the Banks making such Bid Rate Loans in accordance
with each such Bank's pro rata share thereof, and (4) if made with respect to
Reimbursement Obligations, to the Banks in accordance with each Bank's
Aggregate Pro Rata Share. Subject to the terms and conditions of this
Agreement, the Company and each other Multicurrency Borrower may choose the
Borrowing or Borrowings to which any such payment will be applied. After the
occurrence and during the continuance of an Event of Default and upon the
concurrence of the Administrative Agent and after notice by the Administrative
Agent to the Company that payments and proceeds shall be so applied, all
payments remitted to the Agents shall be applied, subject to the provisions of
this Agreement, (1) first, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent hereunder;
(2) second, to pay Obligations in respect of any fees, expense reimbursements
or indemnities then due to any of the other Agents pro rata hereunder; (3)
third, to pay Obligations in respect of any fees, expense reimburse-ments or
indemnities then due to the Banks and the Issuing Banks hereunder; (4) fourth,
to pay interest due in respect of Loans and Reimbursement Obligations (pro
rata); (5) fifth, to pay or prepay principal of Loans and Reimbursement
Obligations (pro rata); (6) sixth, to pay amounts required to be paid into the
Collateral Account pursuant to Section 13.02; and (7) seventh, to the ratable
payment of all other Obligations.
(ii) The Administrative Agent, the Tranche D Agent, the Bid Agent
or the Tranche F Agent, as applicable, shall, in accordance with this Section
9.01, distribute to each Bank at its primary address set forth on the
appropriate signature page of this Agreement (or, as applicable, an Assignment
and Acceptance), or at such other address as a Bank may request in writing,
such funds as it may be entitled to receive, provided that no Agent shall in
any event be bound to inquire into or determine the validity, scope or
priority of any interest or entitlement of any Bank and may suspend all
payments or seek appropriate relief (including, without limitation,
instructions from the Majority Banks or an action in the nature of
interpleader) in the event of any doubt or dispute as to any apportionment or
distribution contemplated hereby. The post-Event of Default order of priority
herein is set forth solely to determine the rights and priorities of the Banks
as among themselves and may at any time or from time to time be changed by the
Banks as they may elect, in writing in accordance with Section 15.01, without
necessity of notice to or consent of or approval by the Company, any other
Multicurrency Borrower or any other Person.
Section 9.01. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 13.02 to authorize the
Administrative Agent to declare the Obligations due and payable pursuant to
the provisions of Section 13.02, each Bank and each Issuing Bank is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Bank or Issuing Bank to or for the credit or the
account of the Company or any other Multicurrency Borrower against any and
all of the Obligations owing to such Bank or Issuing Bank, whether or not
such Bank or Issuing Bank shall have made any demand under this Agreement and
although such Obligations may be unmatured (other than unmatured
Reimbursement Obligations for undrawn amounts under the Tranche E Letter of
Credit). The deposits or other indebtedness against which such Obligations
are set-off may be denominated in any currency, and each Bank and each
Issuing Bank is hereby authorized to effect any appropriate currency
exchanges in order to implement such set-off. Each Bank and each Issuing
Bank agrees promptly to notify the Company after any such set-off and
application made by such Bank or Issuing 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 and each Issuing Bank under this Section
9.02 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Bank or such Issuing Bank may
have.
Setion 9.03. 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 Obligations owing to it (other than
pursuant to Section 5.04, 7.03, 9.04, 9.05, 9.06(b), 9.07(b), 9.12 or 15.04
or solely in its capacity as an Agent or an Issuing Bank) in excess of its
Applicable Pro Rata Share of payments on account of the Obligations obtained
by all the Banks, such Bank shall forthwith purchase from the other Banks such
participations in the Obligations owing to 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 Applicable Pro Rata Share of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered.
The Company and each other Multicurrency Borrower agree that any Bank so
purchasing a participation from another Bank pursuant to this Section 9.03
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 the Company and the other
Multicurrency Borrowers in the amount of such participation.
Section 9.04. Increased Costs, Reserves and Capital.
(a) Increased Costs, Reserves and Capital Arising from the Loans.
(i) If, due to either (1) 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 Loans, included in the Eurocurrency Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (2) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall
be any increase in the cost to any Bank of agreeing to make or making, funding
or maintaining Eurocurrency Rate Loans, then the Company shall from time to
time, upon demand by such Bank (with a copy of such demand to the
Administrative Agent and the Tranche D Agent or the Tranche F Agent, as
applicable), pay to the Tranche D Agent or the Tranche F Agent, as applicable,
for the account of such Bank additional amounts sufficient to compensate such
Bank for such increased cost. A certificate as to the amount of such
increased cost, submitted to the Company, the Administrative Agent and the
Tranche D Agent or the Tranche F Agent, as applicable, by such Bank, shall be
conclusive and binding for all purposes, absent manifest error.
(ii) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Loan is made by the Company or another Multicurrency
Borrower to or for the account of a Bank other than on the last day of the
Interest Period for such Loan, as a result of a payment or Conversion pursuant
to Section 5.08, 7.06, 9.07(c)(v) or 9.08, acceleration of the maturity of the
Loans pursuant to Section 13.02 or for any other reason, or by an assignee of
a Bank to such Bank other than on the last day of the Interest Period for such
Loan upon an assignment of rights and obligations under this Agreement
pursuant to Section 15.06 as a result of a demand by the Company pursuant to
Section 15.08, the Company or such Multicurrency Borrower shall, upon demand
by such Bank (with a copy of such demand to the Administrative Agent and the
Tranche D Agent or the Tranche F Agent, as applicable), pay to the Tranche D
Agent or the Tranche F Agent, as applicable, 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 (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Bank to fund or
maintain such Loan.
(iii) If any Bank shall have determined that the adoption 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 or any corporation controlling such Bank) with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable
agency, has or would have the effect after the date hereof of reducing the
rate of return on such Bank's capital or the capital of any corporation
controlling such Bank as a consequence of such Bank's obligations to make
Loans hereunder to a level below that which such Bank could have achieved but
for such adoption, change or compliance by an amount deemed by such Bank to be
material, then the Company shall from time to time, upon demand by such Bank
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank additional amounts
sufficient to compensate such Bank or such controlling corporation for such
reduction. A certificate as to the amount of such increased cost, submitted
to the Company and the Administrative Agent by such Bank, shall be conclusive
and binding for all purposes, absent manifest error.
(b) Increased Costs, Reserves and Capital Arising from Letters of
Credit.
(i) If any change in any law or regulation or in the interpretation
thereof by any court or administrative or Governmental Authority charged with
the administration thereof shall either (1) impose, modify or deem applicable
any reserve, special deposit or similar requirement against letters of credit
or guarantees issued by, or assets held by, or deposits in or for the account
of, any Issuing Bank or any Bank or (2) impose on any Issuing Bank or any Bank
any other condition regarding this Agreement or the Letters of Credit or any
collateral therefor, and the result of any event referred to in clause (1) or
(2) above shall be to increase the cost to such Issuing Bank or such Bank of
issuing, participating in or maintaining any Letter of Credit, then, upon
demand by such Issuing Bank or such Bank, as applicable (with a copy of such
demand to the Administrative Agent), the Company shall pay to the
Administrative Agent for the account of such Issuing Bank or such Bank, as
applicable, from time to time as specified by such Issuing Bank or such Bank,
additional amounts sufficient to compensate such Issuing Bank or such Bank for
such increased cost. A certificate as to the amount of such increased cost,
submitted by such Issuing Bank or such Bank to the Company and the
Administrative Agent, shall be conclusive and binding for all purposes, absent
manifest error.
(ii) If any Issuing Bank or any Bank determines that compliance
with any law or regulation or any guideline or request from any central bank
or other Governmental Authority (whether or not having the force of law)
affects or would affect the amount of capital required or expected to be
maintained by such Issuing Bank or such Bank or any corporation controlling
such Issuing Bank or such Bank and that the amount of such capital is
increased by or based upon the existence of such Bank's commitment to lend or
participate in Letters of Credit hereunder or such Issuing Bank's issuance and
maintenance of any Letter of Credit hereunder and other commitments of these
types, then, upon demand by such Issuing Bank or such Bank, as applicable
(with a copy of such demand to the Administrative Agent), the Company shall
immediately pay to the Administrative Agent for the account of such Issuing
Bank or such Bank, from time to time as specified by such Issuing Bank or such
Bank, additional amounts sufficient to compensate such Issuing Bank or such
Bank or such corporation in the light of such circumstances, to the extent
that such Issuing Bank or such Bank reasonably determines such increase in
capital to be allocable to the existence of such Issuing Bank's or such Bank's
commitments or the issuance of any Letter of Credit hereunder. A certificate
as to such amounts submitted to the Company and the Administrative Agent by
such Issuing Bank or such Bank shall be conclusive and binding for all
purposes, absent manifest error.
(c) Limitations; Designation of Alternate Lending Offices.
Notwithstanding the foregoing, the Company shall not be required to make any
payments or indemnify any Bank under this Section 9.04 with respect to any
increased costs, losses or expenses or increased capital requirements incurred
by such Bank more than one-hundred eighty (180) days before the date a request
for payment or indemnification is delivered to the Company. Each Bank agrees
(to the extent consistent with internal policies and legal and regulatory
restrictions) to designate a different Applicable Lending Office if such
designation would avoid or reduce the amount of increased costs, losses or
expenses or compensation for increased capital requirements; provided,
however, that such designation need not be made if it would result in any
additional costs, expenses or risks to such Bank that are not reimbursed by
the Company pursuant hereto or would, in the judgment of such Bank, be
otherwise disadvantageous to such Bank.
Section 9.05. Taxes.
(a) Any and all payments by the Company and the other Multicurrency
Borrowers hereunder shall be made 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, each Issuing Bank and each Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such Bank, such Issuing Bank or such Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of each Bank, 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
the Company or any other Multicurrency Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Bank,
any Issuing Bank or any 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 9.05) such
Bank, such Issuing Bank or such Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Company or such Multicurrency Borrower, as applicable, shall make such
deductions and (iii) the Company or such Multicurrency Borrower, as
applicable, shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Company and each other Multicurrency Borrower
jointly and severally agree 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 from the execution, delivery or
registration of, or otherwise with respect to, this Agreement, the Notes or
the Letters of Credit (hereinafter referred to as "Other Taxes"). The
Administrative Agent may demand payment of, and seek recourse on, any Other
Taxes from the Company and/or any other Multicurrency Borrower, without any
requirement that the Administrative Agent allocate the reimbursement
obligation for such Other Taxes among the Company and the other Multicurrency
Borrowers.
(c) The Company and each other Multicurrency Borrower jointly and
severally indemnify each Bank, each Issuing Bank and each 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
9.05) paid by such Bank, such Issuing Bank or such Agent (as the case may be)
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. This indemnification shall be made within
30 days from the date such Bank, such Issuing Bank or such Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Company will furnish to the Administrative Agent, at its address referred to
in Section 15.02, the original or a certified copy of a receipt evidencing
payment thereof.
(e) If the Company or any other Multicurrency Borrower makes any
payment or indemnifies any Bank pursuant to this Section 9.05 (each, a "Tax
Payment"), any Bank effectively obtains a refund of Tax or a credit against
Tax by reason of that Tax Payment (each, a "Tax Credit"), and the Bank is able
to identify the Tax Credit as being attributable to the Tax Payment, then the
Bank shall reimburse to the Company or such Multicurrency Borrower such amount
as the Bank shall, in its absolute discretion, determine to be the proportion
of the Tax Credit as will leave the Bank (after that reimbursement) in no
better or worse position than it would have been in if the Tax Payment had not
been required. The Bank shall have an absolute discretion as to whether to
claim any Tax Credit and, if it does so claim, the extent, order and manner in
which it does so. None of the Banks shall be obliged to disclose any
information regarding its tax affairs or computation to the Company or the
other Multicurrency Borrowers.
(f) Each Bank represents and warrants to the Agents and the Company
that under applicable law and treaties in effect as of the date hereof no
taxes imposed by the United States or any country in which any Bank is
organized or controlled or in which any Bank's Applicable Lending Office is
located or any political subdivision of any of the foregoing will be required
to be withheld by the Company or the Multicurrency Borrowers with respect to
any payments to be made to such Bank in respect of any of the Loans (other
than Multicurrency Loans denominated in a currency other than the official
currency of the jurisdiction under the laws of which the applicable
Multicurrency Borrower is organized) or the Letters of Credit. Each Bank
organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case
of each initial Bank and on the date of the Assignment and Acceptance pursuant
to which it becomes a Bank in the case of each other Bank, and from time to
time thereafter if requested in writing by the Company (but only so long as
such Bank remains lawfully able to do so), shall provide the Company with
Internal Revenue Service form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Bank is
entitled to benefits under an income tax treaty to which the United States is
a party which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from "Taxes" as defined in Section 9.05(a).
(g) For any period with respect to which a Bank has failed to
provide the Company with the appropriate form described in Section 9.05(f)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such
form otherwise is not required under the second sentence of subsection (f)
above), such Bank shall not be entitled to indemnification under Section
9.05(a) with respect to Taxes imposed by the United States; provided, however,
that should a Bank become subject to Taxes because of its failure to deliver a
form required hereunder, the Company and the other Multicurrency Borrowers
shall take such steps as the Bank shall reasonably request to assist the Bank
to recover such Taxes.
(h) Notwithstanding the foregoing, neither the Company nor any
other Multicurrency Borrower shall be required to make any payments or
indemnify any Bank under this Section 9.05 with respect to any Taxes or Other
Taxes paid by such Bank more than one-hundred eighty (180) days before the
date a request for payment or indemnification is delivered to the Company or
any other Multicurrency Borrower. Each Bank agrees (to the extent consistent
with internal policies and legal and regulatory restrictions) to designate a
different Applicable Lending Office if such designation would avoid or reduce
the amount of Taxes or Other Taxes; provided, however, that such designation
need not be made if it would result in any additional costs, expenses or risks
to such Bank that are not reimbursed by the Company pursuant hereto or would,
in the judgment of such Bank, be otherwise disadvantageous to such Bank.
(i) Without prejudice to the survival of any other agreement of the
Company or any other Multicurrency Borrower hereunder, the agreements and
obligations of the Company and the other Multicurrency Borrowers contained in
this Section 9.05 shall survive the payment in full of principal and interest
hereunder and the termination of the Commitments and the Letters of Credit.
Section 9.06. Fees. (a) The Company shall pay to the Administrative Agent,
for the account of each Bank, a facility fee in an amount equal to fifty-five
hundredths of one percent (0.55%) per annum applied to each Bank's Aggregate
Pro Rata Share of the Letter of Credit Tranche Commitments, payable in
arrears on the last Business Day of each fiscal quarter and on the date any
such Bank's Commitment terminates.
(b) The Company shall also pay such fees and expenses to the Agents
and the Issuing Banks as the Company, the Agents and the Issuing Banks may
separately agree.
Section 9.07. Interest Rate Provisions.
(a) Default Interest. Notwithstanding the rates of interest and
payment dates specified in Sections 5.06 and 7.05, effective five (5) Business
Days after the Company receives written notice from the Administrative Agent
of the occurrence of any Event of Default and the applicability of this
Section 9.07(a) and for as long thereafter as any such Event of Default shall
be continuing, the principal balance of all Syndicated Loans and Multicurrency
Loans then outstanding and, to the extent permitted by applicable law, any
interest payments on the Syndicated Loans and Multicurrency Loans not paid
when due, shall bear interest payable upon demand at a rate which is two
percent (2%) per annum in excess of the rate of interest otherwise payable
under this Agreement.
(b) Additional Interest on Eurocurrency Rate Loans. The Company
and the other Multicurrency Borrowers shall pay to the Tranche D Agent or the
Tranche F Agent, as applicable, for the account of each Bank, so long as such
Bank shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurocurrency Rate Loan of such
Bank, from the date of such Eurocurrency Rate Loan 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 Interest
Period for such Eurocurrency Rate Loan 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 Eurocurrency Rate Loan. Such
additional interest shall be determined by such Bank and notified to the
Company through the Tranche D Agent or the Tranche F Agent, as applicable.
(c) Interest Rate Determination.
(i) Each Reference Bank agrees to furnish to the Tranche D Agent
and the Tranche F Agent, as applicable, timely information for the purpose of
determining each Eurocurrency Rate. If any one or more of the Reference Banks
shall not furnish such timely information to such Agent for the purpose of
determining any such interest rate, such Agent shall determine such interest
rate on the basis of timely information furnished by the remaining Reference
Banks.
(ii) The Tranche D Agent or the Tranche F Agent, as applicable,
shall give prompt notice to the Company and the Banks of the applicable
interest rate determined by such Agent for purposes of Section 5.06(a) or (b)
or 7.05, and the applicable rate, if any, furnished by each Reference Bank for
the purpose of determining the applicable interest rate under Section 5.06(b)
or 7.05.
(iii) Notwithstanding any other provision of this Agreement to the
contrary,
(A) If the Reference Banks fail to furnish timely information to
the Tranche D Agent or the Tranche F Agent, as applicable, for determining
the Eurocurrency Rate for any Eurocurrency Rate Loans denominated in a
particular Permitted Currency and comprising a requested Borrowing,
(1) such Agent shall forthwith notify the Company and the
Banks that the interest rate cannot be determined for such Eurocurrency Rate
Loans,
(2) the right of the Company and the other Multicurrency
Borrowers to request and the obligation of the Banks to make, or to Convert
Loans into, Eurocurrency Rate Loans in such Permitted Currency shall be
suspended until such Agent shall notify the Company and the Banks that the
circumstances causing such suspension no longer exist, and
(3) any Notice of Multicurrency Borrowing or Notice of
Syndicated Borrowing with respect to such Borrowing shall be deemed cancelled
and such Borrowing shall not be made.
(B) If, with respect to any Eurocurrency Rate Loans denominated in
a particular Permitted Currency and comprising a requested Borrowing, the
Majority Banks notify the Tranche D Agent or the Tranche F Agent, as
applicable, that the Eurocurrency Rate for such Eurocurrency Rate Loans will
not adequately reflect the cost to such Majority Banks of making, funding or
maintaining their respective Eurocurrency Rate Loans for such Borrowing, such
Agent shall forthwith so notify the Company and the Banks, whereupon
(1) the right of the Company and the other Multicurrency
Borrowers to request and the obligation of the Banks to make, or to Convert
Loans into, Eurocurrency Rate Loans in such Permitted Currency shall be
suspended until such Agent shall notify the Company and the Banks that the
circumstances causing such suspension no longer exist, and
(2) any Notice of Multicurrency Borrowing or Notice of
Syndicated Borrowing with respect to such Borrowing shall be deemed cancelled
and such Borrowing shall not be made.
The Tranche D Agent or the Tranche F Agent, as applicable, shall, upon
becoming aware that the circumstances causing any such suspension under this
clause (iii) no longer apply, promptly so notify the Company, provided that
the failure of either such Agent to so notify the Company shall not impair the
rights of the Banks under this Section 9.07(c)(iii) or expose such Agent to
any liability.
(iv) If the Company (whether on behalf of itself or another
Multicurrency Borrower) shall fail to select the duration of any Interest
Period for any Eurocurrency Rate Loans in accordance with the terms of this
Agreement, the Company shall be deemed to have chosen an Interest Period of
one month.
(v) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Loans comprising any Syndicated Borrowing shall be reduced,
by payment or prepayment or otherwise, to less than $5,000,000, such Loans
shall automatically Convert into Base Rate Loans.
Section 9.08. Illegality. Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Tranche D Agent or the Tranche F
Agent, as applicable, that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central
bank or other Governmental Authority asserts that it is unlawful, for such
Bank or its Eurocurrency Lending Office to perform its obligations hereunder
to make Eurocurrency Rate Loans in a particular Permitted Currency or
generally or to fund or maintain any Eurocurrency Rate Loans hereunder, (i)
the right of the Company and the other Multicurrency Borrowers to request and
the obligation of the Banks to make or to Convert Loans into Eurocurrency
Rate Loans in the affected Permitted Currencies shall be suspended until such
Agent shall notify the Company and the Banks that the circumstances causing
such suspension no longer exist, (ii) any Notice of Multicurrency Borrowing
or Notice of Syndicated Borrowing with respect to any requested Borrowing of
Eurocurrency Rate Loans in the affected Permitted Currencies shall be deemed
cancelled and such Borrowing shall not be made, and (iii) the Company and the
other Multicurrency Borrowers shall forthwith prepay in full all Eurocurrency
Rate Loans of all Banks in the affected Permitted Currencies then
outstanding, together with interest accrued thereon, unless, solely with
respect to Syndicated Loans, the Company, within five Business Days of the
applicable notice from the Tranche D Agent, Converts all such Eurocurrency
Rate Loans of all Banks then outstanding into Base Rate Loans in accordance
with Section 5.07.
Section 9.09. Obligations Absolute. The obligations of the Company under
this Agreement and any other agreement or instrument relating to the Letters
of Credit shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of any Credit Document;
(ii) any change in the time, manner or place of payment of, or in
any other terms of, all or any of the obligations of the Company in respect
of any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the Credit Documents;
(iii) the existence of any claim, set-off, defense or other right
which the Company may have at any time against any Beneficiary or any
transferee of any Letter of Credit (or any persons or entities for whom any
such Beneficiary or any such transferee may be acting), any Issuing Bank
(including, without limitation, any claim arising out of the fact that the
Beneficiary is a branch, subsidiary or affiliate of such Issuing Bank), any
of the Banks, or any other person or entity, whether in connection with this
Agreement, the transactions contemplated hereby, by the Credit Documents or
the Foreign Ancillary Documents or any unrelated transaction;
(iv) any statement or any other document presented under any Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect
(provided, that the Company does not hereby waive any independent claim it
may have against any Beneficiary for the presentation of fraudulent
documents);
(v) payment by an Issuing Bank under any Letter of Credit against
presentation of a draft or certificate which does not comply with the terms
of such Letter of Credit where such payment does not constitute gross
negligence or willful misconduct on the part of the Issuing Bank (it being
understood that the Issuing Bank's exclusive reliance on the documents
presented to it in accordance with the terms of the applicable Letter of
Credit as to any matters set forth therein, whether or not any statement or
any document presented pursuant to such Letter of Credit proves to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
proves to be untrue or inaccurate in any respect whatsoever, shall in no case
be deemed gross negligence or willful misconduct);
(vi) any exchange, release or non_perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of the Company in respect of any
Letter of Credit;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Company or a guarantor; or
(viii) the occurrence of any Event of Default or Unmatured Event of
Default.
Section 9.10. Right of Set-Off Against Defaulting Banks.
(a) Participation in Letters of Credit. In the event that any
Bank fails to fund its Aggregate Pro Rata Share of any payment required to be
made by such Bank to the applicable Agent for the benefit of any Issuing Bank
in accordance with the provisions of Section 2.04(b), 3.04(b), 4.04(b) or
6.07(b), until the earlier of such Bank's cure of all such failures and the
termination of the Letter of Credit Tranche Commitments, the proceeds of all
amounts thereafter paid or repaid to any Agent by the Company or any other
Multicurrency Borrower and otherwise required to be applied to such Bank's
share of any Obligations pursuant to the terms of this Agreement shall be
advanced to the applicable Issuing Bank (or proportionately to all applicable
Issuing Banks) by such Agent on behalf of such Bank to cure, in full or in
part, such failure by such Bank, but shall nevertheless be deemed to have been
paid to such Bank in satisfaction of such Obligations. Notwithstanding
anything in this Agreement to the contrary:
(i) the foregoing provisions of this Section 9.10(a) shall
apply only with respect to the proceeds of payments of Obligations and shall
not affect the Conversion of any Loans hereunder; and
(ii) a Bank shall be deemed to have cured its failure to fund
its Aggregate Pro Rata Share of any such required payment in respect of a
Letter of Credit at such time as an amount equal to such Bank's Aggregate Pro
Rata Share (determined as of the time of the applicable Agent's receipt of
notice of the failure by the Company to reimburse the applicable Issuing Bank
with respect to a payment under such Letter of Credit) of such required
payment plus any interest accrued thereon in accordance with the provisions
of this Agreement, is fully funded to such Issuing Bank, whether made by such
Bank itself, by operation of the terms of this Section 9.10(a) or by the
Company directly to such Issuing Bank.
(b) Funding of Loans. In the event that any Bank fails to fund its
Applicable Pro Rata Share of any Loan requested by the Company or any
Multicurrency Borrower which such Bank is obligated to fund under the terms of
this Agreement (the funded portion of such Loan being hereinafter referred to
as a "Non-Pro Rata Loan"), then until the earlier of (i) such Bank's cure of
such failure and (ii) the termination of the Tranche D Commitment or the
Tranche F Commitment, as applicable, the proceeds of all amounts thereafter
paid or repaid to the Agents by the Company or any other Multicurrency
Borrower and otherwise required to be applied to such Bank's share of any
other Obligations pursuant to the terms of this Agreement shall, unless
otherwise required to be advanced to an Issuing Bank under Section 9.10(a), be
advanced to the Company or the applicable Multicurrency Borrower (converted to
the applicable Permitted Currency) by the applicable Agent on behalf of such
Bank to cure, in full or in part, such failure by such Bank, but shall
nevertheless be deemed to have been paid to such Bank in satisfaction of such
other Obligations. Notwith-standing anything in this Agreement to the
contrary:
(1) the foregoing provisions of this Section 9.10(b) shall
apply only with respect to the proceeds of payments of Obligations and shall
not affect the Conversion of any Loans hereunder;
(2) a Bank shall be deemed to have cured its failure to fund
its Applicable Pro Rata Share of any Loan at such time as an amount equal to
such Bank's Applicable Pro Rata Share (determined as of the time of the
receipt, with respect to such Loan, by the Tranche D Agent of the related
Notice of Syndicated Borrowing or by the Tranche F Agent of the related
Notice of Multicurrency Borrowing) of the requested principal portion of such
Loan is fully funded to the Company, whether made by such Bank itself or by
operation of the terms of this Section 9.10(b); and
(3) any amounts advanced to the Company or any other
Multicurrency Borrower under this Section 9.10(b) to cure, in full or in
part, any such Bank's failure to fund its Applicable Pro Rata Share of any
Loan, shall be deemed a part of the same Borrowing as the applicable Non-Pro
Rata Loan.
Section 9.11. Participation of the Banks in the Letters of Credit. (a)
Whenever an Issuing Bank receives a payment on account of a Reimbursement
Obligation, including any interest thereon, as to which the Administrative
Agent or the Tranche E Agent, as the case may be, has received for the
account of such Issuing Bank any payments from the Banks pursuant to Section
2.04(b), 3.04(b), 4.04(b) or 6.07(b), it shall promptly pay to the applicable
Agent and such Agent shall promptly pay to each Bank which has funded its
participating interest therein, in Dollars and in the kind of funds so
received, an amount equal to such Bank's pro rata share thereof (according to
the amounts so funded). Each such payment shall be made by the Issuing Bank
or the applicable Agent, as the case may be, on the Business Day on which
such Person receives the funds paid to such Person pursuant to the preceding
sentence, if received prior to 11:00 A.M. (New York time) on such Business
Day, and otherwise on the next succeeding Business Day.
(b) The obligations of a Bank to make payments to the applicable
Agent for the account of each Issuing Bank with respect to a Letter of Credit
shall be irrevocable, not subject to any qualification or exception
whatsoever, includ-ing, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement,
any other Credit Documents, any Foreign Ancillary Documents or any CP
Documents;
(ii) the existence of any claim, setoff, defense or other
right which the Company or any Subsidiary of the Company (including, without
limitation, any other Multicurrency Borrower) may have at any time against
any Beneficiary, any Foreign Ancillary Lender or any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting), any
Agent, any Issuing Bank, any Bank, or any other Person, whether in connection
with this Agreement, any Letter of Credit, any Foreign Ancillary Loan, the
transactions contemplated herein or any unrelated transactions;
(iii) any draft, certificate or any other document presented
under the Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any secur-ity for the
performance or observance of any of the terms of any of the Credit Documents,
the CP Documents or Foreign Ancillary Documents; or
(v) the occurrence of any Event of Default or Unmatured Event
of Default;
provided, however, that notwithstanding the foregoing the Banks shall not be
required to make any payments for the account of an Issuing Bank with respect
to any Letter of Credit for which such Issuing Bank is not entitled to
indemnifi-cation from the Company by reason of Section 9.12(d).
Section 9.12. Indemnification; Nature of the Duties of the Issuing
Indemnification; Nature of the Duties of the Issuing Banks. (a) The Company
hereby agrees to protect, indemnify, pay and save each Issuing Bank and each
Bank harmless from and against any and all claims, demands, liabilities,
damages, losses, costs, charges and expenses (including outside attorneys'
fees or allocated costs of internal counsel) which such Issuing Bank or such
Bank may reasonably incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit, other than as a direct
result of the gross negligence or willful misconduct of such Issuing Bank (it
being understood that such Issuing Bank's exclusive reliance on the documents
presented to it in accordance with the terms of such Letter of Credit as to
any and all matters set forth therein, whether or not any statement or any
document presented pursuant to such Letter of Credit proves to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
proves to be untrue or inaccurate in any respect whatsoever, shall in no case
be deemed willful misconduct or gross negligence of such Issuing Bank, and it
being further understood that the Company is not hereby releasing any
independent claim it may have against any Beneficiary which has submitted
fraudulent documents under such Letter of Credit), including, without
limitation, the use of the proceeds of each Letter of Credit by the applicable
Beneficiary, (ii) the failure of such Issuing Bank to honor a drawing under
any Letter of Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority (all such acts or omissions herein called "Government
Acts"), or (iii) the failure of any of the Commercial Paper Dealers to make
timely payment for issued Series 1 CP Notes on the day of the purchase
thereof, including any losses or expenses incurred in connection with the
investment or reemployment of funds.
(b) In furtherance and not in limitation of the foregoing, no
Issuing Bank shall be responsible: (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for the issuance of any Letter of Credit,
even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the failure of the
Beneficiary of any Letter of Credit to comply fully with conditions required
in order to draw upon such Letter of Credit (it being understood that the
Company is not hereby releasing any independent claim it may have against any
Beneficiary which has submitted fraudulent documents under such Letter of
Credit); (iii) for errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex, telecopier or
otherwise, whether or not they be in cipher; (iv) for errors in interpretation
of technical terms; (v) for any loss or delay in the transmission of any
document required in order to make a drawing under any Letter of Credit or of
the proceeds thereof; and (vi) for any consequences arising from causes beyond
the control of such Issuing Bank, including, without limitation, any
Government Acts. None of the above shall affect, impair, or prevent the
vesting of any Issuing Bank's rights or powers hereunder.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by any
Issuing Bank under or in connection with the Letters of Credit issued by it or
the related certificates, if taken or omitted in the absence of willful
misconduct or gross negligence, shall not put such Issuing Bank under any
resulting liability to the Company or the Banks or relieve the Company or the
Banks of their obligations hereunder to such Issuing Bank. In determining
whether to pay under any Letter of Credit, an Issuing Bank shall have no
obligation relative to the Banks other than to confirm that any documents
required to be delivered under such Letter of Credit appear on their face to
have been delivered in compliance with the requirements of such Letter of
Credit.
(d) Notwithstanding anything to the contrary contained herein,
the Company shall have no obligation to indemnify an Issuing Bank under this
Section 9.12 in respect of any liability incurred by such Issuing Bank (i)
arising solely out of the gross negligence or willful misconduct of such
Issuing Bank (it being understood that each Issuing Bank's exclusive reliance
on the documents presented to such Issuing Bank in accordance with the terms
of the applicable Letter of Credit as to any and all matters set forth
therein, whether or not any statement or any document presented pursuant to
such Letter of Credit proves to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein proves to be untrue or inaccurate in
any respect whatsoever, shall in no case be deemed willful misconduct or gross
negligence of such Issuing Bank), or (ii) arising solely out of the wrongful
dishonor by such Issuing Bank of proper demand for payment made under and in
strict conformity with the Letters of Credit issued by it, or (iii) unless
such Issuing Bank shall have made demand on the Company for indemnification
for such liability pursuant to this Section 9.12 within ninety days of the
Issuing Bank's having become aware of the event or condition giving rise to
the demand for indemnification.
Section 9.13. Promissory Notes. (i) The Company shall execute and deliver
a Company Note, dated the date hereof, to each Bank (or to the Administrative
Agent on behalf of such Bank, with prompt delivery thereof to each Bank
thereafter) on the Closing Date. Each Multicurrency Borrower (including the
Company) shall execute and deliver a Multicurrency Note, dated the date
hereof (with respect to the Company) or of the related Multicurrency
Assumption Agreement (with respect to each other Multicurrency Borrower), to
each Multicurrency Bank (or to the Administrative Agent on behalf of such
Multicurrency Bank, with prompt delivery thereof to each Multicurrency Bank
thereafter) prior to the delivery of the first Notice of Multicurrency
Borrowing with respect to such Multicurrency Borrower. The Company shall
also execute and deliver a Bid Rate Note, dated the date of the related Bid
Rate Loan, to each Bank making a Bid Rate Loan (or to the Administrative
Agent on behalf of such Bank, with prompt delivery thereof to each Bank
thereafter) prior to the making of such Bid Rate Loan.
(ii) Each Bank is hereby authorized, at its option, to either (a)
endorse the date and amount, as applicable, of each Loan made by such Bank and
each Reimbursement Obligation incurred and each repayment or prepayment of
principal of Loans or Reimbursement Obligations made with respect to such Note
on a schedule which shall be annexed to and constitute a part of such Note or
(b) record, as applicable, such Loans, Reimbursement Obligations, repayments
and prepayments in its books and records, such schedule or such books and
records, as the case may be, constituting prima facie evidence, absent
manifest error, of the accuracy of the information contained therein;
provided, that the failure by any Bank to endorse or record such Loans,
Reimbursement Obligations, repayments and prepayments shall not affect the
obligations of the Company or the applicable Multicurrency Borrower under such
Note.
ARTICLE X
Section 10.01. Conditions Precedent to Closing. This Agreement shall be of
no force or effect until all of the following conditions precedent have been
satisfied:
(a) The Administrative Agent shall have received all of the
following, each in form and substance satisfactory to the Banks (as indicated
by each Bank's signature hereto) and, in the case of item (i) below, in
sufficient copies for each of the Banks:
(i) This Agreement, executed by the Company, together with all
Exhibits and Schedules hereto.
(ii) The Company Notes and the Company's Multicurrency Notes, with
appropriate insertions, executed by the Company and payable to the order of
each Bank.
(iii) Certified copies of the resolutions of the Board of Directors
of the Company approving this Agreement, the Company Notes, its Multicurrency
Notes, the Multicurrency Borrower Assumption Agreements to be delivered on
the Closing Date, and the other Credit Documents to be delivered by the
Company in connection herewith, the incurrence of the Loans and the
Reimbursement Obligations and the issuance of the Letters of Credit.
(iv) A certificate of the Secretary or an Assistant Secretary of
the Company certifying (1) the Certificate of Incorporation of the Company,
(2) the By-laws of the Company, and (3) the names and true signatures of the
officers of the Company authorized to sign this Agreement and the other
Credit Documents to be delivered by the Company in connection herewith.
(v) With respect to each Multicurrency Borrower other than the
Company to be party hereto on the Closing Date:
(1) The Multicurrency Notes, with appropriate insertions,
executed by such Multicurrency Borrowers and payable to the order of each
Multicurrency Bank.
(2) Multicurrency Borrower Assumption Agreements executed by
each such Multicurrency Borrower and the Company.
(3) Certified copies of the resolutions or other authorizing
actions of the Board of Directors or other governing body of each such
Multicurrency Borrower, approving this Agreement, the Multicurrency Notes of
such Multicurrency Borrower and the other Credit Documents to be delivered by
such Multicurrency Borrower in connection herewith and the incurrence of the
Multicurrency Loans by such Multicurrency Borrower.
(4) A certificate of the Secretary or an Assistant Secretary
(or other appropriate officer) of each such Multicurrency Borrower certifying
(x) the Certificate of Incorporation and By-laws (or other organizational
documents) of such Multicurrency Borrower and (y) the names and true
signatures of the officers of such Multicurrency Borrower authorized to sign
its Multicurrency Borrower Assumption Agreement and the other Credit
Documents to be delivered by such Multicurrency Borrower in connection
herewith.
(vi) A certificate of good standing of the Company issued by the
Secretaries of State of Illinois and Delaware.
(vii) A favorable opinion of the General Counsel of the Company,
dated the Closing Date, relating to such matters as the Administrative Agent
and the Tranche D Agent deem appropriate and in form and substance
satisfactory to each such Agent.
(viii) A favorable opinion of Sidley & Austin, counsel to the
Administrative Agent and the Tranche D Agent.
(ix) The Company's quarterly report as most recently filed with the
Securities and Exchange Commission, together with any letter of the General
Counsel of the Company, as required pursuant to Section 11.01(f).
(x) Certificates of Designation identifying all European Ancillary
Borrowers, Western Pacific Ancillary Borrowers and Asian Ancillary Borrowers
as of the Closing Date.
(xi) Such other documentation as the Administrative Agent or the
Tranche D Agent may reasonably request.
(b) All accrued and unpaid interest, fees and expenses due and
payable by the Company under the Second Amended Agreement on or prior to the
Closing Date shall have been paid in full in cash, it being understood that
all interest, fees and expenses owing under the Second Amended Agreement but
not yet due and payable on or before the Closing Date shall be paid on the
first payment date for the corresponding amounts set forth in this Agreement.
(c) All Letters of Credit, to the extent necessary, shall have been
amended or replaced to reflect the Stated Amounts thereof and the Scheduled
Maturity Date as of the Closing Date.
(d) There shall have been no material adverse change in the
business, operations, assets or financial or other condition of the Company
and its Subsidiaries taken as a whole, in the judgment of the Agents, the
Issuing Banks and the Banks (as evidenced by their execution of this
Agreement).
(e) Each condition precedent set forth in Section 10.02 shall be
satisfied on and as of the Closing Date.
SECTION 10.02. Conditions Precedent to Each Borrowing, Letter of
Conditions Precedent to Each Borrowing, Letter of Credit, Reallocation and
Extension of Scheduled Maturity Date. The obligation of each Bank to make a
Loan on the occasion of each Borrowing hereunder (including the initial
Borrowing), to Convert a Syndicated Loan, to participate in the Letters of
Credit, to honor any request for a Reallocation (as provided in Article VIII)
and to extend the Scheduled Maturity Date hereunder pursuant to Section 15.07,
and the obligation of each Issuing Bank to issue, amend or reinstate any of
the Letters of Credit (other than an amendment which only decreases the Stated
Amount thereof), shall in each such case be subject to the further conditions
precedent that on the date of the making or Conversion of such Loan, the
issuance, amendment or reinstatement of such Letter of Credit, the applicable
Reallocation Effective Date or each Scheduled Maturity Date on which the
Commitments of the Banks are extended, (a) the following statements shall be
true:
(i) The representations and warranties made by the Company and each
other Multicurrency Borrower herein or which are contained in any
certificate, document or financial or other statement furnished at any time
under or in connection herewith, shall be correct on and as of such date as
if made on and as of such date (both before and after giving effect thereto),
provided, that the representation set forth in Section 11.01(b) shall be
deemed to be made only (1) on and as of the Closing Date and (2) on each
Scheduled Maturity Date on which the Commitments of the Banks are extended by
reference to the date of the most recently furnished certified quarterly
financial statements of the Company;
(ii) The Administrative Agent shall have received, with respect to
Multicurrency Loans to a Multicurrency Borrower other than the Company, the
documentation with respect to such Multicurrency Borrower identified in
Section 10.01(a)(v); and
(iii) No Unmatured Event of Default or Event of Default shall have
occurred and be continuing on such date, both before and after giving effect
thereto;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Bank through the Administrative Agent may
reasonably request. Each request to issue or amend the Letters of Credit
(other than an amendment which only decreases the Stated Amount thereof), each
drawing thereunder or reinstatement thereof, each delivery of a Notice of
Syndicated Borrowing, a Notice of Multicurrency Borrowing or a Notice of Bid
Rate Borrowing and the acceptance by the Company of the proceeds of such
Borrowing, each delivery of a Notice of Reallocation and each Reallocation,
each Notice of Conversion and each Conversion of Loans and each request to
extend the Scheduled Maturity Date and each extension thereof shall constitute
a representation and warranty by the Company that on such date each of the
above statements are true.
SECTION 10.03. Additional Conditions Precedent to Each Bid Rate
Additional Conditions Precedent to Each Bid Rate Borrowing. The obligation
of each Bank to make a Bid Rate Loan on the occasion of a Bid Rate Borrowing
(including the initial Bid Rate Borrowing) is subject to the additional
conditions precedent that (i) at least three Business Days before the date of
such Bid Rate Borrowing, the Bid Agent shall have received the Notice of Bid
Rate Borrowing with respect thereto, (ii) at least one Business Day before the
date of such Bid Rate Borrowing, the Bid Agent shall have received the written
confirmatory notice of such Bid Rate Borrowing to be given by the Company
pursuant to Section 5.03(b)(iii), and (iii) on or before the date of such Bid
Rate Borrowing but prior to such Bid Rate Borrowing, the Bid Agent shall have
received a Bid Rate Note signed by the Company and payable to the order of
such Bank for each of the one or more Bid Rate Loans to be made by such Bank
as part of such Bid Rate Borrowing, in a principal amount equal to the
principal amount of the Bid Rate Loan to be evidenced thereby and otherwise on
such terms as were agreed to for such Bid Rate Loan in accordance with Section
5.03.
ARTICLE XI
Section 11.01. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) Financial Condition. The consolidated balance sheet of the
Company and its consolidated Subsidiaries as at September 30, 1993 and the
related consolidated statement of earnings and statement of cash flows for the
fiscal year ended on such date certified by KPMG Peat Marwick, copies of which
certified statements have heretofore been furnished to the Agents and the
Banks, are complete and correct and present fairly the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such dates,
and the consolidated results of their operations and cash flows for the fiscal
years then ended. The unaudited consolidated balance sheet of the Company and
its consolidated Subsidiaries as of June 30, 1994, and the related unaudited
consolidated statement of earnings and statement of cash flows for the
nine-month period ended on such date, copies of which have heretofore been
furnished to the Agents and the Banks, are complete and correct and present
fairly the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such dates, and the consolidated results of
their operations and cash flows for the nine-month period then ended (subject
to normal year-end audit adjustments). Such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP. Neither the Company nor any of its consolidated Subsidiaries has any
material contingent obligation, material contingent liability or liability for
taxes, material long-term lease or material forward or long-term commitment,
which is not reflected in the foregoing certified statements or in the notes
thereto.
(b) No Change. Since September 30, 1993, there has been no
material adverse change in the business, operations, assets or financial or
other condition of the Company and its Subsidiaries taken as a whole.
(c) Corporate Existence; Compliance with Law. The Company and each
of its Subsidiaries (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the business in
which it is currently engaged, (iii) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualifications, and (iv) is in compliance with all Requirements
of Law, except to the extent that the failure to comply therewith could not,
in the aggregate, have a material adverse effect on the business, operations,
property or financial or other condition of the Company and its Subsidiaries
taken as a whole, or could not materially adversely affect the ability of the
Company to perform its obligations under this Agreement, the other Credit
Documents or the CP Documents.
(d) Corporate Power; Authorization; Enforceable Obligations. The
Company has the corporate power and authority and the legal right to make,
deliver and perform this Agreement and the Notes and to borrow hereunder and
to obtain the Letters of Credit and to enter into the Series 1 Depositary
Agreement and Dealer Agreements and to issue the Series 1 CP Notes and has
taken all necessary corporate action to authorize the Letters of Credit and
the borrowings on the terms and conditions of this Agreement and the Notes and
to authorize the execution, delivery and performance of this Agreement, the
other Credit Documents and the CP Documents. No consent or authorization of,
filing with, or other act by or in respect of any other Person (including
stockholders and creditors of the Company) or any Governmental Authority, is
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement, the other
Credit Documents or the CP Documents or with respect to obtaining the Letters
of Credit. This Agreement and the Notes have been duly executed and delivered
on behalf of the Company and this Agreement, the other Credit Documents and
the CP Documents when executed and delivered by the Company, shall constitute
legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their respective terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally.
(e) No Legal Bar. The execution, delivery and performance of this
Agreement, the other Credit Documents, the CP Documents, the incurrence of the
Reimbursement Obligations, the making of the Loans and the obtaining of the
Letters of Credit and the use of the proceeds in each case thereof, will not
violate any Requirement of Law or any Contractual Obligation of the Company or
any of its Subsidiaries, and will not result in, or require the creation or
imposition of, any Lien on any of their respective properties or revenues
pursuant to any Requirement of Law or Contractual Obligation.
(f) No Material Litigation. Except as disclosed in the Company's
annual, quarterly and special reports, as filed by the Company with the
Securities and Exchange Commission most recently prior to the execution and
delivery hereof, and supplemented, as necessary, by a letter dated no later
than five days prior to the execution and delivery hereof by the Company, of
the General Counsel of the Company, addressed to each Bank, no litigation,
arbitration, governmental investigation (except audits by the Internal Revenue
Service not involving a special agent) or proceeding against the Company or
any of its Subsidiaries or to which any of the properties of any thereof is
subject is pending or, to the knowledge of the Company, threatened which (i)
involves individually more than the Individual Material Amount or, in the
aggregate, more than the Aggregate Material Amount, or (ii) if adversely
determined, might materially adversely affect the consolidated financial
condition or operations of the Company and its Subsidiaries or impair the
ability of the Company to perform any of its obligations under this Agreement,
the other Credit Documents or the CP Documents, or (iii) purports to affect
the legality, validity or enforceability of any Credit Document, CP Document
or Foreign Ancillary Document.
(g) No Default. Neither the Company nor any Subsidiary is in
default, subject to any applicable grace period, in the payment of any Debt
(except for (i) defaults in the payment of any Debt by Non-Recourse
Subsidiaries and (ii) defaults in payments of Non_Recourse Obligations) or
under any law or governmental regulation or court or administrative decree or
order materially affecting its property or business, or aware of any facts or
circumstances which would give rise to any such default.
(h) Taxes. The Company and its Subsidiaries have filed or caused
to be filed all tax returns which to the knowledge of the Company are required
to be filed, and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property.
(i) Subsidiaries. As of the Closing Date, the Company has no
Subsidiaries other than those listed on Schedule 11.01(i) attached hereto.
(j) ERISA. Neither the Company nor any member of the Controlled
Group is now maintaining or contributing, or has ever maintained or
contributed, to any Benefit Plan. Neither the Company nor any member of the
Controlled Group is now contributing, or has ever contributed, to any
Multiemployer Plan. Each Plan which is intended to be qualified under Section
401(a) of the Code has been determined by the IRS to be so qualified, and each
trust related to any such Plan has been determined to be exempt from federal
income tax under Section 501(a) of the Code. Neither the Company nor any
member of the Controlled Group has breached any of the responsibilities,
obligations or duties imposed on it with respect to any Plan by ERISA and the
Code which has resulted in or reasonably could be expected to result in any
material liability to the Company or any such member of the Controlled Group.
Neither the Company nor any member of the Controlled Group has engaged in a
nonexempt prohibited transaction described in Section 406 of ERISA or Section
4975 of the Code.
(k) Foreign Ancillary Obligations. All obligations of the Company
and its Subsidiaries listed on Schedule 11.01(k) hereto are outstanding as of
the date hereof and shall be deemed to be Foreign Ancillary Obligations within
the meaning of this Agreement and to be supported by the Letters of Credit
issued pursuant to Tranche A, Tranche B or Tranche C, as applicable.
(l) Equity Securities. No proceeds of any Loan will be used to
acquire any equity security of a class which is registered pursuant to Section
12 of the Securities Exchange Act of 1934 except for warrants and options (and
any equity securities obtained through the exercise thereof) and preferred
stock of a Person, which warrants, options and preferred stock are acquired by
the Company or any of its Subsidiaries in connection with (i) the lease of
Equipment by the Company or such Subsidiary, as lessor, to such Person, as
lessee, or (ii) the provision of business continuity services by the Company
or such Subsidiary to such Person.
(m) Margin Stock. Neither the Company nor any of its Subsidiaries
is engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System), and no proceeds of any Loan
or Letter of Credit will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock.
(n) Governmental Regulation. As of the Closing Date, neither the
Company nor any Subsidiary of the Company is subject to regulation under the
Interstate Commerce Act, the Investment Company Act of 1940 or any other
federal or state statute or regulation such that its ability to incur
indebtedness is limited.
(o) Environmental Compliance. Except as disclosed on Schedule
11.01(o), the operations of the Company comply in all material respects with
all applicable federal, state or local environmental, health and safety
statutes and regulations ("Environmental Laws"). None of the Company's
operations or property is currently subject to any judicial or administrative
proceeding alleging the violation of any Environmental Laws nor are they the
subject of federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any hazardous, toxic or
radioactive waste, substance or constituent, into the environment. Except as
disclosed in Schedule 11.01(o), the Company has not filed any notice under any
federal or state law indicating past or present treatment, storage or disposal
of a hazardous waste or reporting a spill or release of a hazardous or toxic
waste, substance or constituent, into the environment. Except as disclosed on
Schedule 11.01(o), the Company has no material contingent liability of which
the Company has actual knowledge in connection with any violation by it of any
Environmental Laws or the release of any hazardous or toxic waste, substance
or constituent, into the environment from its operations or on or from its
properties.
SECTION 11.02. Representations and Warranties of the Other
Representations and Warranties of the Other Multicurrency Borrowers. Each
Subsidiary of the Company which becomes a Multicurrency Borrower hereunder
shall be deemed by the execution and delivery of its Multicurrency Borrower
Assumption Agreement to have represented and warranted as of the date thereof
as follows (and the Company, by its execution of such Multicurrency Borrower
Assumption Agreement, shall be deemed to have confirmed each such
representation and warranty):
(a) Such Multicurrency Borrower is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization.
(b) The execution and delivery by such Multicurrency Borrower of
its Multicurrency Borrower Assumption Agreement and its Subsidiary Notes and
the performance by it of this Agreement and its Subsidiary Notes are within
its powers, have been duly authorized by all necessary action, and do not
contravene (i) its constituent documents or (ii) any law or any contractual
restriction binding on or affecting such Multicurrency Borrower.
(c) This Agreement constitutes a legal, valid and binding agreement
of such Multicurrency Borrower, and its Subsidiary Notes, when executed and
delivered in accordance with this Agreement, will constitute legal, valid and
binding obligations of such Multicurrency Borrower, enforceable against such
Multicurrency Borrower in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally.
ARTICLE XII
Section 12.01. Affirmative Covenants. So long as any portion of the
Obligations shall remain unpaid, any Bank shall have any Commitment hereunder
or any amount remains available for drawing under any Letter of Credit, the
Company, unless the Majority Banks shall otherwise consent in writing:
(a) Corporate Existence and Qualification. Shall take all steps
necessary to preserve its corporate existence and cause to be done at all
times all things necessary to be fully qualified to do business in all states
or other jurisdictions in which the failure to so qualify might materially
adversely affect the consolidated financial condition or operations of the
Company and its Subsidiaries.
(b) Insurance. Shall maintain, and shall cause each of its
Subsidiaries to maintain, insurance coverage by financially sound and
reputable insurers in such forms and amounts, with such deductibles and
against such risks as are customary for corporations engaged in the same or a
similar business and owning and operating similar properties.
(c) ERISA. Shall, and shall cause each of its ERISA Affiliates to
establish, maintain and operate all Plans to comply with all applicable
provisions of ERISA and the Code and the respective documents for such Plans.
(d) Continuance of Business. Shall do, or shall cause to be done
and shall cause each Material Subsidiary to do or cause to be done all things
reasonably necessary to preserve and keep in full force and effect its
existence and all franchises, rights and privileges necessary for the proper
conduct of its business in substantially the same manner and in substantially
the same fields as such business is carried on or conducted as of the Closing
Date.
(e) Taxes and Obligations. Shall pay and discharge and shall cause
each of its Subsidiaries to pay and discharge all of such Person's obligations
and liabilities, including, without limitation, all taxes, assessments and
governmental charges upon its income and properties, when due, unless and to
the extent only that such obligations, liabilities, taxes, assessments and
governmental charges shall be contested in good faith and by appropriate
proceedings and that, to the extent required by GAAP, proper and adequate book
reserves relating thereto are established by the Company or such Subsidiary.
(f) Further Assurances. Shall execute and deliver to the Agents
all agreements, documents and instruments and do such further acts and things
as the Agents may reasonably request which may be necessary or desirable to
effect the purposes of this Agreement.
(g) Fiscal Year. Shall notify the Agents and the Banks of any
change of its Fiscal Year within 60 days of such change.
(h) Books and Records. Shall, and shall cause each of its
Subsidiaries to, keep books and records reflecting all of such Person's
business affairs and transactions in accordance with GAAP and, subject to the
confidentiality provisions of Section 15.09, permit the Agents, the Banks or
any of their representatives, at reasonable times and intervals, to visit all
of its offices, discuss its financial matters with its officers and
independent accountants (and hereby authorize the independent accountants to
discuss its financial matters with the Agents and the Banks or their
representatives) and examine any of its books and other corporate records.
(i) Additional Information. Shall furnish, or shall cause to be
furnished, to the Agents and the Banks such other information regarding the
business, affairs and condition of the Company and its Subsidiaries as the
Agents or any Bank may from time to time reasonably request.
(j) Compliance with Requirements of Law. Shall, and shall cause
each Subsidiary to, comply in all respects with all Requirements of Law, the
noncompliance with which could have a material adverse effect on the business
operations, financial condition or properties of the Company or any of its
Subsidiaries or on the ability of the Company to perform its obligations under
this Agreement.
(k) Notice of Decrease in Ratings. Shall promptly notify the
Agents in writing if it receives notice of any decrease in the ratings of any
Series 1 CP Notes or of any of the Company's other publicly-traded debt.
Section 12.02. Reporting Covenants. So long as any portion of the
Obligations shall remain unpaid, any Bank shall have any Commitment hereunder
or any amount remains available for drawing under any Letter of Credit, the
Company will, unless the Majority Banks shall otherwise consent in writing:
(a) Furnish, or cause to be furnished, to the Administrative Agent,
on behalf of the Banks, copies of the following financial statements, reports,
certificates and information (and, with respect to documents filed with or
provided to the Securities and Exchange Commission, in sufficient copies for
all of the Banks):
(i) as soon as available and in any event within 45 days after
the close of each of the first three quarters of each Fiscal Year,
consolidated and consolidating balance sheets at the close of such quarter,
and the related consolidated and consolidating statements of earnings,
stockholders' equity and cash flows for the period commencing at the end of
the previous Fiscal Year and ending with the close of such quarter, of the
Company and its Subsidiaries, certified by the Vice President and Controller
or Executive Vice President and Chief Financial Officer of the Company;
(ii) as soon as available and in any event within 90 days after
the close of each Fiscal Year:
(1) consolidated balance sheets at the close of such Fiscal
Year and the related consolidated statements of earnings, stockholders'
equity and cash flows for such Fiscal Year, of the Company and its
Subsidiaries, certified without qualification by KPMG Peat Marwick, another
of the "Big Six" accounting firms, or any other independent public
accountants of recognized standing selected by the Company and acceptable to
the Majority Banks,
(2) a written statement by such accountants setting forth
in reasonable detail a calculation of the financial covenants set forth in
Section 12.04 at the close of such Fiscal Year and further to the effect that
they have examined the provisions of this Agreement and that at the date of
such statement are not aware of any default in the performance by the Company
or any of its Subsidiaries of any obligation to be performed by such Person
hereunder or under any instrument or document executed pursuant hereto,
except such, if any, as may be disclosed in such statement,
(3) a consolidating balance sheet at the close of such Fiscal
Year, and the related consolidating statements of earnings, stockholders'
equity and cash flows for such Fiscal Year, of the Company and its
Subsidiaries, certified by the Vice President and Controller or Executive
Vice President and Chief Financial Officer of the Company, and
(4) copies of the detailed financial and management reports
submitted to the Company by independent public accountants in connection with
each annual or interim audit made by such accountants of the books of the
Company or any Subsidiary;
(iii) together with the financial statements delivered pursuant to
Sections 12.02(a)(i) and (ii) hereof, a Compliance Certificate;
(iv) promptly upon the mailing thereof to stockholders of the
Company generally, any annual report, proxy statement or other communication;
(v) promptly upon any filing thereof by the Company with the
Securities and Exchange Commission, any annual, periodic or special report or
registration statement (exclusive of exhibits thereto) generally available to
the public;
(vi) promptly from time to time a written report (which may be
contained in the Company's Form 10-Q or 10-K as filed from time to time with
the Securities and Exchange Commission) of any changes in the list of its
Subsidiaries set forth on Schedule 11.01(i); and
(vii) promptly from time to time such information and reports
required to be given to the Administrative Agent and each Issuing Bank as set
forth in the Series 1 Depositary Agreement regarding outstanding Series 1 CP
Notes.
(b) Immediately give notice to the Banks of:
(i) the occurrence of any Event of Default or Unmatured Event of
Default hereunder;
(ii) any litigation, arbitration, governmental investigation
(except audits by the Internal Revenue Service not involving a special agent)
or proceeding not previously disclosed to the Banks is instituted or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries or to which any of the properties of any thereof is subject
which (a) involves individually more than the Individual Material Amount or,
in the aggregate, more than the Aggregate Material Amount, or (b) if
adversely determined, might materially adversely affect the consolidated
financial condition or operations of the Company and its Subsidiaries or
impair the ability of the Company to perform any of its obligations under
this Agreement, the other Credit Documents or the CP Documents, or (c)
purports to affect the legality, validity or enforceability of any Credit
Document, CP Document or Foreign Ancillary Document;
(iii) any material adverse development which shall occur in any
litigation, arbitration or governmental investigation or proceeding
previously disclosed by the Company to the Banks;
(iv) any default by any Commercial Paper Dealer in the performance
of its obligations under its Dealer Agreement;
(v) any default by the Tranche E Beneficiary in the performance of
its obligations under the Series 1 Depositary Agreement; and
(vi) any of the CP Documents ceasing to be in full force and
effect.
(c) Furnish, or cause to be furnished, to the Agents and the Banks
such other information regarding the business, affairs and condition
(financial or otherwise) of the Company and its Subsidiaries as the Agents or
any Bank may from time to time reasonably request.
Section 12.03. Negative Covenants. So long as any portion of the
Obligations shall remain unpaid, any Bank shall have any Commitment hereunder
or any amount remains available for drawing under any Letter of Credit, the
Company will not, without the prior written consent of the Majority Banks:
(a) Liens. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien upon or with respect to
any of its properties, whether now owned or hereafter acquired, other than:
(i) Liens securing Non_Recourse Obligations of the Company or any
of its Subsidiaries incurred in connection with leasing transactions or
business continuity services provided in the ordinary course of business of
the Company or such Subsidiary;
(ii) Liens incurred in connection with the acquisition of any
Equipment and attaching only to the Equipment and any related Contract being
acquired so long as the Debt secured thereby does not exceed the fair market
value of such Equipment and any related Contract at the time of acquisition
thereof;
(iii) Liens securing Debt of a Subsidiary of the Company to the
Company or to another Subsidiary of the Company;
(iv) Liens for taxes, assessments or other governmental charges or
levies, and Liens securing claims or demands of mechanics and materialmen
incurred in the ordinary course of business, provided in each case that (i)
payment thereof is not at the time required by Section 12.01(e) and (ii) if
required by GAAP, the Company or the applicable Subsidiary shall have set
aside and maintained adequate reserves with respect thereto;
(v) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(vi) Liens with respect to judgments in existence less than 10 days
after the entry thereof or with respect to which execution has been stayed or
the payment of which is covered in full (subject to a customary deductible)
by insurance;
(vii) rights of lessees, sublessees, conditional sale purchasers
and borrowers under Contracts;
(viii) Liens consisting of mortgages, conditional sale contracts,
security interests or other arrangements for the retention of title
(including capitalized leases) created or incurred for the financing or
purchase of real property of the Company or any of its Subsidiaries and
attaching only to the property being acquired or financed, so long as the
Debt secured thereby (i) was not in existence prior to the creation of such
Lien and (ii) did (or, in the case of property acquired or financed after the
date hereof, does) not exceed the fair market value of such property at the
time of creation of such Lien;
(ix) Liens (other than the Liens permitted by clauses (i) through
(viii) above) securing (1) Debt for borrowed money of, or guaranteed by, the
Company or any of its Subsidiaries or (2) obligations of the Company or any
of its Subsidiaries arising under Buy_Leases; provided, that the sum of (A)
all such Debt for borrowed money (excluding the non_recourse portion of any
Limited Recourse Obligations) and (B) the excess of (I) the present value
(discounted at the Base Rate most recently determined by the Tranche D Agent)
of all obligations of the Company and its Subsidiaries under Buy_Leases over
(II) the present value (discounted at the Base Rate most recently determined
by the Tranche D Agent) of all Contract Receivables arising under Eligible
Contracts which are related to the same Equipment as such Buy_Leases shall
not at any time exceed 20% of Consolidated Tangible Net Worth; and
(x) Liens in favor of the Banks in the Collateral Account and in
favor of the banks party to the MOF in the "Cash Collateral Account" under,
and as defined in, the MOF.
(b) Accommodation Obligations. Directly or indirectly create or
become or be liable, or permit any of its Subsidiaries to directly or
indirectly create or become or be liable, with respect to any Accommodation
Obligations except:
(i) guaranties by the Company of lease and other obligations
relating to contract performance of its Subsidiaries in the ordinary course
of business, including, without limitation, the Foreign Ancillary Obligations
and business continuity agreements;
(ii) guaranties by the Company which are limited in amount to a
stated maximum dollar exposure;
(iii) the guaranty by the Company of obligations of its
Subsidiaries under the MOF; and
(iv) the guaranty by the Company of euro commercial paper issued by
Comdisco Finance Nederland B.V. or any other Subsidiary of the Company
pursuant to the MOF.
(c) Dividends and Stock Purchases. At any time when an Event of
Default or Unmatured Event of Default has occurred and is continuing or would
result therefrom, (i) declare or pay any dividends, either in cash or
property, on any shares of its capital stock of any class (except (1)
dividends or other distributions payable solely in shares of capital stock of
the Company and (2) one, and only one, dividend declared and paid on the
preferred stock of the Company), or (ii) directly or indirectly, or through
any of its Subsidiaries, purchase, redeem or retire any shares of its capital
stock of any class or any warrants, rights or options to purchase or acquire
any shares of its capital stock (other than in exchange for or out of the net
proceeds to the Company from the substantially concurrent issue or sale of
other shares of capital stock of the Company or warrants, rights or options to
purchase or acquire any shares of its capital stock), or (c) make any other
payment or distribution, either directly or indirectly or through any
Subsidiary, in respect of its capital stock.
(d) Sale and Leasebacks. Enter into any arrangement, or permit any
of its Subsidiaries to enter into any arrangement, whereby the Company or any
of its Subsidiaries shall sell or transfer any property owned by it or any of
its Subsidiaries to any Person other than to the Company or any of its
Subsidiaries and thereupon the Company or any Subsidiary shall lease or intend
to lease, as lessee, the same property (any such transaction being referred
to as a "Sale and Leaseback") except (i) Sale and Leasebacks of any disaster
recovery site in the ordinary course of business, (ii) Sale and Leasebacks in
the ordinary course of business of Equipment included in the Company's leasing
portfolio for the purpose of recapturing the Company's equity investment in
such Equipment and (iii) the Sale and Leaseback of the Company's corporate
headquarters located at 6111 North River Road, Rosemont, Illinois.
(e) Take or Pay Contracts. Enter into or be a party to, or permit
any of its Subsidiaries to enter into or be a party to, any arrangement for
the purchase of materials, supplies, other property or services if such
arrangement requires that payment be made by the Company or such Subsidiary
regardless of whether or not such materials, supplies, other property or
services are delivered or furnished to the Company or such Subsidiary.
(f) Consolidation, Merger, etc. Consolidate with or merge into or
with any other corporation, or purchase or otherwise acquire all or
substantially all of the assets of any Person or sell, transfer, lease or
otherwise dispose of all or any substantial part of its assets to any Person,
or permit any of its Material Subsidiaries to do so, except:
(i) the merger, consolidation or liquidation of any Material
Subsidiary of the Company into the Company or into or with any other
Subsidiary of the Company (the surviving entity thereof also being a Material
Subsidiary);
(ii) the merger, consolidation or liquidation into the Company or
any Material Subsidiary, or the acquisition by the Company or any Material
Subsidiary of all or substantially all the assets, of any other Person (other
than the Company), but only if:
(1) such Person is engaged exclusively in a business which is
in substantially the same fields as the existing business of the Company or
such Material Subsidiary, as the case may be; and
(2) any such merger or acquisition would not cause the Company
to violate any other provision of this Agreement; or
(iii) the sale, transfer, lease or other disposition of Equipment
in the ordinary course of its business;
provided, however, that any such action of the nature referred to in clause
(i) or (ii) of this Section 12.03(f) shall only be permitted if no Event of
Default of Unmatured Event of Default has occurred and is continuing or would
result therefrom.
(g) Plans. Establish, incur or suffer to exist, or permit any
member of the Controlled Group to establish, incur or suffer to exist, any
obligations with respect to any Benefit Plan or Multiemployer Plan.
(h) Subordinated Debt. Pay or prepay, or permit any of its
Subsidiaries to pay or prepay, any principal of, or make any payment of
interest on, or redeem, purchase or otherwise acquire any Subordinated Debt at
any time an Event of Default or Unmatured Event of Default has occurred and is
continuing.
(i) Inconsistent Agreements. Enter into any agreement, or permit
any of its Subsidiaries to enter into any agreement, which contains any
provision which would be violated or breached by any Borrowing or requests for
credit made hereunder or by the performance by the Company of its obligations
hereunder or under any other Credit Document.
(j) CP Documents. Amend or modify any of the terms or provisions
of the CP Documents without the prior written consent of the Administrative
Agent and the Tranche E Issuing Bank.
(k) Depositary and Commercial Paper Dealers. Replace (i) the
Tranche E Beneficiary without the prior written consent of the Majority Banks
and the Tranche E Issuing Bank or (ii) any of the Commercial Paper Dealers
without the prior written consent of the Tranche E Issuing Bank.
Section 12.04. Financial Covenants. The Company shall have, on a
consolidated basis with its Subsidiaries:
(a) Consolidated Tangible Net Worth as of the end of any quarter
of any Fiscal Year of not less than the sum of (i) $587,000,000 plus (ii) 50%
of the Consolidated Net Income of the Company and its Subsidiaries for the
period from September 30, 1994 to and including the last day of such quarter
(without any adjustment to the requirements set forth in this covenant to
reflect losses in any Fiscal Year or, if applicable, in the portion of the
current Fiscal Year then ended);
(b) a Fixed Charge Coverage Ratio as of the end of any quarter
of any Fiscal Year on a rolling four_quarter basis of not less than 1.15 to
1;
(c) a Total Liabilities to Adjusted Net Worth Ratio as of the
end of any quarter of any Fiscal Year of not more than 6.5 to 1.00.
(d) a Recourse Liabilities Ratio as of the end of any quarter of
any Fiscal Year of not more than 4.5 to 1;
(e) a Ratio of Unencumbered Cash Flow to Contractual Payments,
as of the end of any quarter of any Fiscal Year of not less than 1.00 to
1.00;
(f) Net Cash Provided By Operating Activities Ratio as of the
end of any quarter on a rolling four quarter basis not to be less than 0.25
to 1.00;
(g) Cumulative Net Losses (arising in computing Consolidated Net
Income) in any four (4) consecutive quarters of not more than $10,000,000;
and
(h) A Ratio of Remarketing Revenues (to be computed in a manner
consistent with the computation thereof as set forth in the Company's
financial statements referred to in Section 11.01(a) hereof) to Net Book (or
Residual) Value (to be computed in a manner consistent with the computation
thereof as set forth in the Company's financial statements referred to in
Section 11.01(a) hereof), as of the end of each fiscal year, of not less than
1.25 to 1.00.
ARTICLE XIII
Section 13.01. Events of Default. Each of the following occurrences shall
constitute Events of Default under this Agreement:
(a) Failure to Make Payments. The Company or any other
Multicurrency Borrower shall fail to pay when due any interest on or principal
of any Loan, Reimbursement Obligation, fee or other amount payable under this
Agreement and (i) with respect to Reimbursement Obligations arising under
Tranche E, such failure shall continue unremedied for one (1) Business Day,
and (ii) with respect to interest, fees and other amounts, such failure shall
continue unremedied for three (3) Business Days following written notice
thereof from the Administrative Agent, the Tranche F Agent or the Tranche D
Agent; or
(b) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Company or any other Multicurrency
Borrower (or any of its respective officers) herein or in any of the other
Credit Documents or in any statement or certificate at any time given by the
Company or such Multicurrency Borrower pursuant to any of the Credit Documents
shall prove to have been incorrect in any material respect when made; or
(c) Breach of Certain Covenants. The Company shall fail to perform
or observe (i) any term, covenant or agreement contained in Section 12.03(a),
12.03(c), 12.03(h), 12.03(i), 12.03(j), 12.03(k) or 12.04, or (ii) the
covenant contained in Section 12.03(f), which failure arises from a merger or
consolidation involving the Company or the sale of all or any substantial part
of the assets of the Company, or (iii) any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed (unless
otherwise constituting an Event of Default under any of the other provisions
of this Section 13.01) if such failure shall remain unremedied for thirty (30)
days after written notice thereof shall have been given to the Company by the
Administrative Agent; or
(d) Default as to Other Debt. The Company or any of its
Subsidiaries shall fail to pay any principal of or premium or interest on any
of its Debt which is outstanding in a principal amount of at least the
Individual Material Amount individually or the Aggregate Material Amount in
the aggregate (but excluding (i) the Obligations, (ii) any Debt of a
Subsidiary of the Company to the Company or another of its Subsidiaries, (iii)
any Non-Recourse Obligations, and (iv) any Debt of a Non-Recourse Subsidiary),
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 any other event shall occur or
condition shall exist under any agreement or instrument relating to any such
Debt 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 to permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) Other Defaults. The Company or any of its Subsidiaries shall
fail to pay when due, whether by acceleration or otherwise, or shall fail to
perform or observe (subject to any applicable grace period) any material
obligation or agreement of the Company or such Subsidiary involving a claim or
claims in excess of the Individual Material Amount individually or the
Aggregate Material Amount in the aggregate (but excluding (i) any such
material obligation or agreement constituting or related to Debt for borrowed
money, (ii) the Obligations, and (iii) any material obligation or agreement of
any Subsidiary of the Company to the Company or another of its Subsidiaries),
except to the extent that the existence of any such default is being contested
by the Company or such Subsidiary, as the case may be, in good faith and by
appropriate proceedings and the Company or such Subsidiary shall have set
aside on its books such reserves or other appropriate provisions therefor as
may be required by GAAP; or
(f) Insolvency of the Company or a Material Subsidiary. The
Company or any of the Material Subsidiaries (other than a Non-Recourse
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 (other than a
Non-Recourse Subsidiary) seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or 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,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but
not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
the Company or any of the Material Subsidiaries (other than a Non-Recourse
Subsidiary) shall take any corporate action to authorize any of the actions
set forth above in this subsection (f); or
(g) Insolvency of Other Subsidiaries. In any twelve-month period,
Subsidiaries (other than Non-Recourse Subsidiaries) of the Company having
aggregate total assets of $20,000,000 or more shall generally not pay their
debts as such debts become due, or shall admit in writing their inability to
pay their debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against such
Subsidiaries seeking to adjudicate them bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of such Subsidiaries or their 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, custodian or other similar official for them or for any substantial
part of their property and, in the case of any such proceeding instituted
against such Subsidiaries (but not instituted by them), either such proceeding
shall remain undismissed or unstayed for a period of 30 days, or any of the
actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, them or for any substantial part of
their property) shall occur; or such Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection (g);
provided, that where a 30-day period referred to above would end after any
relevant twelve-month period, such twelve-month period shall be deemed
extended to include all days in such 30-day period; or
(h) Judgments. Judgments or orders for the payment of money in
excess of the Individual Material Amount individually or the Aggregate
Material Amount in the aggregate shall be rendered against the Company or any
of its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be
any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, that this Section 13.01(h) shall not include any judgments
or orders to the extent that the Company or the applicable Subsidiary is (1)
insured and with respect to which the insurer thereof has assumed
responsibility in writing or (2) otherwise indemnified in a manner
satisfactory to the Administrative Agent and the Tranche D Agent; or
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13 or Section 14 of the Securities Exchange Act of 1934, as
amended (the "Act")) shall acquire beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under the
Act), either directly or indirectly, of 35% or more of the combined voting
power of the Company's outstanding securities ordinarily having the right to
vote at elections of directors.
Section 13.02. Remedies. (a) If any event described in Section 13.01(f)
shall occur, the Tranche D Commitment and the Tranche F Commitment of each
Bank (if not theretofore terminated) shall immediately terminate, and the
Loans, the Reimbursement Obligations and all other amounts payable hereunder
shall become immediately due and payable, including the undrawn amount of the
outstanding Letters of Credit, and the Company and the other Multicurrency
Borrowers shall immediately pay to the Administrative Agent the amount of all
Loans and Reimbursement Obligations outstanding and all other amounts payable
hereunder in full, including the full undrawn amounts of the Letters of
Credit, all without presentment, demand, protest or notice of any kind (all
of which are hereby expressly waived). If any Event of Default not described
in Section 13.01(f) occurs, the Administrative Agent may with the consent of
the Tranche D Agent, and shall upon direction of the Majority Banks (or Banks
whose Voting Pro Rata Shares, calculated as if the Tranche D Commitment and
the Tranche F Commitment had already terminated, aggregate to more than 50%),
declare the Tranche D Commitment and the Tranche F Commitment of each Bank
(if not theretofore terminated) to be terminated, and the Loans, the
Reimbursement Obligations and all other amounts payable hereunder to be due
and payable, including the undrawn amount of the outstanding Letters of
Credit, whereupon each Bank's Tranche D Commitment and Tranche F Commitment
(if not theretofore terminated) shall immediately terminate and the Loans,
the Reimbursement Obligations and all other amounts payable hereunder shall
become immediately due and payable and the Company and the other
Multicurrency Borrowers shall immediately pay to the Administrative Agent the
amount of all Loans and Reimbursement Obligations outstanding and all other
amounts payable hereunder in full, including the full undrawn amount of the
Letters of Credit, all without presentment, demand, protest or notice of any
kind (all of which are hereby expressly waived). Upon the occurrence of any
Event of Default, the Administrative Agent or each Issuing Bank (with respect
to its Letter of Credit) may, and upon the direction of the Majority Banks
shall, (i) notify the European Beneficiaries, the Western Pacific
Beneficiaries or the Asian Beneficiaries that (x) no drawings under the
applicable Letters of Credit thereafter made shall be reinstated and (y) no
new Foreign Ancillary Obligations may be created by such Beneficiary
thereafter under the support of such Letters of Credit and (ii) notify the
Tranche E Beneficiary (x) of such Event of Default and its request (through
delivery of an Acceleration Notice) that such Beneficiary make an
Acceleration Drawing under the applicable Letters of Credit and (y) that no
drawings under such Letters of Credit thereafter made shall be reinstated.
Following the termination of the Tranche D Commitment and the Tranche F
Commitment, and when no Series 1 CP Notes (other than Delayed Notes) remain
outstanding and all Foreign Ancillary Obligations and Obligations hereunder
have been indefeasibly paid in full in cash, the Commitments of each of the
Banks hereunder shall automatically terminate.
(b) If the prepayment of the amount available for drawing under the
Letters of Credit is required under this Section 13.02, the Company and the
other Multicurrency Borrowers shall forthwith pay the amount required to be so
prepaid, to be held by the Administrative Agent as provided below.
(c) All amounts prepaid pursuant to this Section 13.02 shall be
held by the Administrative Agent in a separate collateral account (such
account, and the credit balances, properties and any investments from time to
time held therein, and any substitutions for such account, any certificate of
deposit or other instrument evidencing any of the foregoing and all proceeds
of and earnings on any of the foregoing being collectively called the
"Collateral Account") as security for, and for application by the
Administrative Agent (to the extent available) to, the reimbursement of any
payment under the Letters of Credit then or thereafter made by an Issuing
Bank, and to the payment of the unpaid balance of any Loans, Reimbursement
Obligations and all other Obligations hereunder. The Collateral Account shall
be held in the name of and subject to the exclusive dominion and control of
the Administrative Agent for the benefit of the Agents and the Banks. If (i)
the Company and the other Multicurrency Borrowers shall have made payment of
all Obligations, (ii) all relevant preference or other disgorgement periods
relating to the receipt of such payments have passed (and the Administrative
Agent shall have received an opinion of independent legal counsel of
recognized national standing in matters of bankruptcy to such effect), and
(iii) no Letters of Credit, Commitments, Loans, Series 1 CP Notes (other than
Delayed Notes), Reimbursement Obligations or other Obligations remain
outstanding hereunder, then the Administrative Agent shall repay to the
Company and the other Multicurrency Borrowers any remaining amounts held in
the Collateral Account.
(d) As security for the payment when due of all of the obligations
of the Company and the other Multicurrency Borrowers hereunder and under the
Letters of Credit, the Company and each other Multicurrency Borrower hereby
pledges and assigns to the Administrative Agent for the benefit of the Agents,
the Issuing Banks and the Banks, and grants to the Administrative Agent for
the benefit of the Agents, the Issuing Banks and the Banks, a general lien on
and continuing security interest in and right of set_off against, all of its
respective right, title and interest in and to the Collateral Account.
ARTICLE XIV
Section 14.01. Authorization and Action. (a) Each Bank hereby appoints
and authorizes the agents to take such action as agents on its behalf and to
exercise such powers under this Agreement as are delegated to the Agents by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Obligations)
, the Agents 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 (or, as applicable, Banks with the necessary aggregate
Applicable Pro Rata Shares or Voting Pro Rata Shares, as the case may be,
with discretion over such matters), and such instructions shall be binding
upon all Banks and all holders of Notes; provided, however, that no Agent
shall be required to take any action which exposes such Agent to personal
liability or which is contrary to this Agreement or applicable law.
(b) The provisions of this Article XIV are solely for the benefit
of the Agents and the Banks, and neither the Company nor any Subsidiary of the
Company (including, without limitation, the other Multicurrency Borrowers)
shall have any rights to rely on or enforce any of the provisions hereof
(other than as expressly set forth in Section 14.07). In performing its
functions and duties under this Agreement, each Agent shall act solely as
agent, as the case may be, of the Banks and/or the Issuing Banks, as
applicable, and does not assume and shall not be deemed to have assumed any
obligation toward or relation-ship of agency or trust with or for the Company
or any Subsidiary of the Company. Each of the Agents may perform any of its
duties hereunder, or under the Credit Documents, by or through its agents or
employees.
Section 14.02. Nature of Agents' Duties. The Agents shall not have any
duties or responsibilities except those expressly set forth in this Agreement
or in the other Credit Documents. The duties of the Agents shall be
administrative in nature. No Agent shall have by reason of this Agreement a
fiduciary relationship in respect of any Bank or any Issuing Bank. Nothing
in this Agreement or any of the other Credit Documents, expressed or implied,
is intended to or shall be construed to impose upon the Agents any obligation
in respect of this Agreement or any of the other Credit Documents except as
expressly set forth herein or therein. If any Agent seeks the consent or
approval of the Banks to the taking or refraining from taking any action
hereunder, such Agent shall send notice thereof to each Bank. The
Administrative Agent shall promptly notify each Bank at any time that the
Banks have instructed the Agents to act or refrain from acting pursuant
hereto.
Section 14.03. Rights, Exculpation, Etc. (a) Neither the Agents nor any
of their respective 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. No Agent shall be responsible or accountable for the
acts or omissions of any other Agent. None of the Administrative Agent, the
Tranche D Agent, the Tranche F Agent or the Bid Agent shall be liable for any
apportionment or distribution of payments made by it in good faith pursuant
to the terms of this Agreement, and if any such apportionment or distribution
is subsequently determined to have been made in error the sole recourse of any
Person to whom payment was due, but not made, shall be to recover from the
recipients of such payments any payment in excess of the amount to which they
are determined to have been entitled.
(b) Each Agent: (i) may consult with legal counsel (including
counsel for the Company), 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; (ii) 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; (iii) 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 the Company or any other Multicurrency Borrower or to
inspect the property (including the books and records) of the Company or any
other Multicurrency Borrower; (iv) 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; and (v) 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 telephone, telecopier, telegram,
cable or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
(c) The Agents may at any time request instructions from the Banks
with respect to any actions or approvals which by the terms of this Agreement
or of any of the other Credit Documents the Agents are permitted or required
to take or to grant, and if such instruc-tions are promptly requested, the
Agents shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Credit Documents until they shall have received such instructions from the
Majority Banks or all of the Banks, as applicable. Without limiting the
foregoing, no Bank or Issuing Bank shall have any right of action whatsoever
against any of the Agents as a result of such Agent acting or refraining from
acting under this Agreement or any of the other Credit Documents in accordance
with the instructions of the Majority Banks or all of the Banks, as
applicable.
Section 14.04. Rights as a Bank. With respect to its Commitment, the Loans
made by it and the Letters of Credit and Reimbursement Obligations, each of
the Agents in its capacity as a Bank hereunder shall have the same rights and
powers under this Agreement as any other Bank and may exercise the same as
though it were not an Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include each Agent in its individual capacity.
Each Agent in its individual capacity 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, the Company, any of its Subsidiaries
(including, without limitation, the other Multicurrency Borrowers) and any
Person who may do business with or own securities of the Company or any such
Subsidiary, all as if it were not an Agent and without any duty to account
therefor to the Banks.
Sectopm 14.05. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon any Agent or any other Bank and based
on the financial statements referred to in Section 11.01(a) 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 any 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 Agents shall not be
required to keep themselves informed as to the performance or observance by
the Company and the other Multicurrency Borrowers of this Agreement or any
other document referred to or provided for herein or to inspect the
properties or books of the Company or the other Multicurrency Borrower.
Except for notices, reports and other documents and information expressly
required to be furnished to the Banks by the Agents hereunder, the Agents
shall not have any duty or responsibility to provide any Bank with any credit
or other information concerning the affairs, financial condition or business
of the Company or the other Multicurrency Borrowers, which may come into the
possession of the Agents or any of their affiliates.
Section 14.06. Indemnification. The Banks agree to indemnify each of the
Agents (to the extent not reimbursed by the Company), ratably according to
their respective Aggregate Pro Rata Shares, 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 such Agent in any
way relating to or arising out of this Agreement or any action taken or
omitted by such 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
resulting from such Agent's own gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse each Agent
promptly upon demand for its ratable share of any out-of-pocket expenses
(including counsel fees) incurred by such 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 extent that such
Agent is not reimbursed for such expenses by the Company.
Section 14.07. Resignation or Removal of Agents. Subject to the
appointment and acceptance of a successor Agent as provided below, (a) any
Agent may resign as Agent hereunder at any time by giving not less than 10
days' prior written notice thereof to the Banks and the Company, and (b)
Banks whose Voting Pro Rata Shares aggregate to at least seventy percent
(70%) may, by written agreement, remove any Agent with the consent of the
Company (provided, that the consent of the Company shall not be required
after the occurrence and during the continuance of an Event of Default) and,
with respect to a Tranche Agent under a Letter of Credit Tranche, the
applicable Issuing Bank. Upon any such resignation or removal the Majority
Banks shall have the right, after consultation with the Company, to appoint a
successor Agent (which, with respect to a Tranche Agent under a Letter of
Credit Tranche, shall be acceptable to the applicable Issuing Bank). If no\
successor Agent shall have been so appointed by the Majority Banks and shall
have accepted such appointment within 30 days after the retiring Agent's
giving of notice of resignation or of the agreement of the Banks to remove
such Agent, then (i) if such Agent resigned and was not removed by the Banks,
such retiring Agent may, on behalf of the Banks, after consultation with the
Company, appoint one of the Banks (which, with respect to a Tranche Agent
under a Letter of Credit Tranche, shall be acceptable to the applicable
Issuing Bank) to be successor Agent, (ii) if such Agent, other than the
Administrative Agent, was removed by the Banks, the Administrative Agent may,
on behalf of the Banks, after consultation with the Company, appoint one of
the Banks (which, with respect to a Tranche Agent under a Letter of Credit
Tranche, shall be acceptable to the applicable Issuing Bank) to be successor
Agent, and (iii) in the event of the removal by the Banks of the
Administrative Agent, the Bid Agent may, on behalf of the Banks, after
consultation with the Company, appoint one of the Banks (which may be the Bid
Agent) to be successor Administrative Agent. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the departing Agent as Agent hereunder, and the
departing Agent shall be discharged from its duties and obligations as Agent
hereunder. After any departing Agent's resignation or removal, the
provisions of this Article XIV shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it was acting as Agent.
ARTICLE XV
Section 15.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, the Notes, or (except as otherwise permitted under the terms
of this Agreement) the Letters of Credit, nor consent to any departure by the
Company or any other Multicurrency Borrower from the terms thereof, shall in
any event be effective unless the same shall be in writing and signed by the
Majority Banks, 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:
(a) waive any Event of Default or Unmatured Event of Default, amend
or waive any provision of this Agreement the breach of which has given rise
to an Event of Default or Unmatured Event of Default, or amend Section 13.01,
in each case unless in writing and signed by the Majority Banks, Banks whose
Domestic Revolver Pro Rata Shares aggregate to more than 50% and Banks whose
Multicurrency Revolver Pro Rata Shares aggregate to more than 50%,
(b) unless in writing and signed by all the Banks, do any of the
following: (i) waive any of the conditions specified in Article X, (ii)
increase the Commitments of the Banks or subject the Banks to any additional
obligations, (iii) reduce the principal of, or interest on, the Loans or the
Reimbursement Obligations or any fees or other amounts payable hereunder,
(iv) postpone any date fixed for any payment of principal of, or interest on,
the Loans or the Reimbursement Obligations or any fees or other amounts
payable hereunder, (v) change the definitions of Majority Banks or Voting Pro
Rata Shares, or otherwise change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans, or the number of Banks, which
shall be required for the Banks or any of them to take any action hereunder
or (vi) amend Section 9.01(f) or 9.03, the second sentence of Section
13.02(a), Section 15.07, or this Section 15.01,
(c) unless in writing and signed by (i) Banks whose Multicurrency
Revolver Pro Rata Shares aggregate to more than 50%, amend any provision of
Article VII, or (ii) all of the Multicurrency Banks, release the Company's
guaranty of the obligations of the other Multicurrency Borrowers under
Section 7.08, or
(d) unless in writing and signed by the affected Agents and/or
Issuing Banks in addition to the Banks required above to take such action,
affect the rights or duties of any Agents or Issuing Banks under this
Agreement, any Note or any Letter of Credit.
Section 15.02. Notices. To be effective, all notices and other
communications provided for hereunder shall be in writing or by telecopy
transmission or telephone (to be confirmed in writing) and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made
when delivered by hand, when deposited in the mail, air postage prepaid, or
in the case of notice by telecopy transmission, when sent, addressed as
follows in the case of the Company, the other Multicurrency Borrowers, the
Banks and the Agents, or to such address as may be hereafter notified in
writing by the respective parties hereto and any future holders of a Note,
provided that all Notices of Multicurrency Borrowing under Section 7.02
hereof, all Notices of Syndicated Borrowing under Section 5.02 hereof, all
Notices of Bid Rate Borrowing under Section 5.03 hereof, all Notices of
Conversion under Section 5.08 hereof and all notices and communications to
the Agents pursuant to Article XIV shall only be effective when received:
(a) If to the Company:
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: Edward Pacewicz
Vice President/Finance
Telephone: (708) 698-3000
Telecopy: (708) 518-5854
with a copy to:
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: General Counsel
Telephone: (708) 698-3000
Telecopy: (708) 518-5088
(b) If to any Multicurrency Borrower other than the Company:
To its address specified in its
Multicurrency Borrower Assumption
Agreement (with a copy to the
addresses set forth in (a) above);
(c) If to any Bank or Tranche Agent:
To its address set forth below
its name on the signature pages
hereof, with a copy to the
Administrative Agent;
(d) If to the Administrative Agent:
Citibank, N.A.
c/o Citicorp North America, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-1050
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Douglas H. Williams
Telephone: (312) 853-7667
Telecopy: (312) 853-7036
(e) If to the Bid Agent:
NationsBank of North Carolina, N.A.
70 West Madison Street
Suite 5300
Chicago, Illinois 60602
Attention: Michael S. Zehfuss
Telephone: (312) 853-5795
Telecopy: (312) 372-9194
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Douglas H. Williams
Telephone: (312) 853-7667
Telecopy: (312) 853-7036
Section 15.03. No Waiver; Remedies. No failure on the part of any Bank or
any 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 15.04. Fees and Expenses; Indemnity. (a) The Company will promptly
pay all reasonable fees and expenses and disbursements of counsel to the
Administrative Agent and the Bid Agent in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents, the
consummation of the transactions contemplated by the Credit Documents, the
negotiation, preparation and execution and delivery of any material amendment,
modification of, supplement of or to any Credit Document (other than any fee,
cost or expense in connection with assignments or sales of participations by
any Bank pursuant to Section 15.06 hereof). In addition, the Company will
promptly pay all reasonable costs and expenses (including, without limitation,
reasonable fees and disbursements of counsel) suffered or incurred by the
Agents or the Banks in connection with (A) their enforcement of the payment of
the Loans, the Notes, the Reimbursement Obligations or any other sum due to
the Agents or the Banks under this Agreement or any of their other rights
hereunder or thereunder as a result of any Event of Default or any Unmatured
Event of Default or (B) any claim or action threatened, made or brought
against the Agents or the Banks arising out of or relating to any extent to
this Agreement or the transactions contemplated hereby. The obligations of
the Company under this subsection shall survive the payment of the Loans and
the Reimbursement Obligations and the termination of this Agreement.
(b) In addition to the foregoing, the Company shall indemnify
each of the Agents and the Banks and the officers, directors, employees and
agents of the Agents and the Banks (collectively, the "Indemnitees") against,
and hold each Indemnitee harmless from, any losses, liabilities, damages,
claims, costs and expenses (including reasonable attorneys' fees and
disbursements) suffered or incurred by or asserted against such Indemnitee
(other than as a consequence of actual gross negligence or willful misconduct
on the part of such Indemnitee) arising out of, resulting from or in any
manner connected with, the execution, delivery and performance of any of the
Credit Documents or the CP Documents or the incurrence of the Loans or the
Reimbursement Obligations, and any and all transactions related thereto or
consummated in connection therewith, including, without limitation, losses,
liabilities, damages, claims, costs and expenses suffered or incurred by such
Indemnitee in investigating, preparing for, defending against, or providing
evidence, producing documents or taking any other action in respect of any
commenced or threatened litigation, administrative proceeding or investigation
under any federal securities law or any other statute or any jurisdiction, or
any regulation, or at common law or otherwise, which litigation, proceeding or
investigation is alleged to arise out of or is based upon (1) any untrue
statement or alleged untrue statement of any material fact of the Company and
its Affiliates and Subsidiaries (including, without limitation, the other
Multicurrency Borrowers) in this Agreement or any document, certificate or
written matter delivered pursuant hereto or pursuant to any other Credit
Document or any CP Document or in any document or schedule filed with the
Securities and Exchange Commission or any other governmental body; (2) any
omission or alleged omission to state any material fact required to be stated
in this Agreement or any document, certificate or written matter delivered
pursuant hereto or pursuant to any other Credit Document or any CP Document or
in such document or schedule, or necessary to make the statements made herein
or therein, in light of the circumstances under which made, not misleading;
(3) any acts, practices or omissions or alleged acts, practices or omissions
of the Company or any other Multicurrency Borrower or their respective agents
related to the making of any acquisition, purchase of shares or assets
pursuant thereto, financing of any such purchase or the consummation of any
other transaction contemplated by any such acquisition which are alleged to be
in violation of any federal securities law or of any other statute, regulation
or other law of any jurisdiction applicable to the making of any such
acquisition, the purchase of shares or assets pursuant thereto, the financing
of any such purchase or the consummation of the other transaction contemplated
by any such acquisition; or (4) any withdrawal, termination or cancellation of
any such proposed acquisition for any reason whatsoever. The indemnity set
forth herein shall be in addition to any other obligations or liabilities of
the Company to the Agents and the Banks hereunder or at common law or
otherwise. The provisions of this subsection shall survive the payment of the
Loans and the Reimbursement Obligations and the termination of this Agreement.
Section 15.05. Successors and Assigns; Subsequent Holders of Notes. This
Agreement and the other Credit Documents shall be binding upon the parties
hereto and thereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and thereto and the successors and
permitted assigns of the Banks and the Issuing Banks. All references herein
to the Company or any other Multicurrency Borrower shall be deemed to include
its respective successors and assigns, including, without limitation, a
receiver, trustee or debtor-in-possession of or for the Company or such
Multicurrency Borrower. The terms and provisions of this Agreement shall
inure to the benefit of any assignee or transferee of the Notes, and in the
event of such transfer or assignment, the obligations, rights and privileges
herein conferred upon the Banks and the Issuing Banks shall automatically
extend to and be vested in such transferee or assignee, all subject to the
terms and conditions hereof. The Company's and the other Multicurrency
Borrowers' respective rights and any interests therein hereunder, and the
Company's and the other Multicurrency Borrowers' respective duties and
Obligations hereunder, may not be assigned without the written consent of all
of the Banks.
Section 15.06. Assignments and Participations.
(a) Each Bank may and, if demanded by the Company pursuant to
Section 15.08, will assign to one or more banks or other entities all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Loans and Reimbursement
Obligations owing to it and the Note or Notes held by it); provided, however,
that (i) each such assignment shall be of the same percentage of each of the
assigning Bank's Tranche Commitments, (ii) except with respect to an
assignment by a Bank of all of its rights and obligations under this Agreement
or an assignment by one Bank to another Bank, 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 not be less than $5,000,000, (iii) each such assignment
shall be subject to the prior written approval of the Issuing Banks if the
assignee thereof is to be another Bank or an Affiliate thereof, and shall
otherwise be subject to the prior written approval of the Company, the Agents
and the Issuing Banks, (iv) each such assignment made as a result of a demand
by the Company pursuant to Section 15.08 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 which together cover all of
the rights and obligations of the assigning Bank under this Agreement, 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 or Notes subject to such
assignment and a processing and recordation fee of $3,000. 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).
(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 the other Multicurrency Borrowers or the performance or
observance by the Company or the other Multicurrency Borrowers 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 11.01(a) 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 any 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 appoints and
authorizes each Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to such Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee 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.
(c) The Administrative Agent shall maintain at its address
referred to in Section 15.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Banks and the Commitment of, and principal amount
of the Loans and Reimbursement Obligations 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 other
Multicurrency Borrowers, the Agents 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.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed in accordance with the terms hereof and is in
substantially the form of Exhibit K 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 five Business Days
after its receipt of such notice, the Company and the other Multicurrency
Borrowers, at their own expense, shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note or Notes a new Note
or Notes to the order of such assignee and, if the assigning Bank has retained
a Commitment hereunder, a new Note or Notes to the order of the assigning
Bank. Such new Note or Notes shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit I-1, I-2 or I-3 hereto, as applicable.
(e) Each Bank 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 Loans and Reimbursement Obligations 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 to the
Company and the other Multicurrency Borrowers 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, and (iv) the
Company, the other Multicurrency Borrowers, the Agents 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.
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
15.06, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Company and its Subsidiaries
furnished to such Bank by or on behalf of the Company; provided that, prior to
any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to be bound by the provisions set forth in Section
15.09.
(g) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time assign, as collateral or otherwise, any of
its rights (including, without limitation, rights to payments of principal
and/or interest on the Loans) under this Agreement to any Federal Reserve Bank
without notice to or consent of the Company, any Agent or any Issuing Bank.
Section 15.07. Extension of Scheduled Maturity Date. (a) The Company may,
by delivery to the Administrative Agent of written notice substantially in
the form of Exhibit L hereto, request that the Scheduled Maturity Date be
extended as set forth in subsection (b) below. The Administrative Agent
shall give prompt notice to the Banks of each such request and each Bank
shall, within thirty-five (35) days after delivery of such notice by the
Administrative Agent, notify the Administrative Agent in writing whether it
consents to such extension (which consent shall be in the sole discretion of
each Bank). In the event that any Bank shall fail to so notify the
Administrative Agent, such Bank shall be deemed to have refused to consent to
such extension. If the Administrative Agent receives timely consents from
Banks constituting Majority Banks (or the Company otherwise consents in
writing), and subject to the satisfaction of the conditions precedent set
forth in Section 8.01(b) (both before and after the requested extension),
then:
(i) the Scheduled Maturity Date shall be extended as set forth in
subsection (b) below;
(ii) each Bank consenting to the requested extension shall remain a
Bank hereunder; and
(iii) each Bank not consenting to such extension shall, as of the
Scheduled Maturity Date (without giving effect to the applicable extension
thereof) and upon payment by the Company and the other Multicurrency
Borrowers of all Obligations owing to such Bank, (1) cease to be a Bank
hereunder, whereupon its Commitment shall terminate and each Tranche
Commitment shall be correspondingly reduced, (2) if such Bank is an Agent,
cease to be an Agent hereunder (and, if applicable, a successor Agent shall
be appointed pursuant to Section 14.07), and (3) if such Bank is an Issuing
Bank, cease to be an Issuing Bank hereunder (whereupon the applicable Tranche
Commitment shall be reallocated in full to Tranche D, unless the Company
shall previously have designated a replacement Issuing Bank and applicable
Beneficiaries (each of which shall be acceptable to the Administrative Agent
and the Bid Agent) for such Tranche pursuant to the terms of this Agreement).
Simultaneously with any such extension of the Scheduled Maturity Date, each
Letter of Credit shall (unless the Issuing Bank with respect thereto shall not
have consented to such extension and has not been replaced) be amended or
replaced in accordance with the terms hereof and thereof to reflect the new
Scheduled Maturity Date and, if applicable, any reduction in any Tranche
Commitment. In the event that (x) Majority Banks do not consent to the
extension and the Company has not consented in writing to an extension with
fewer than Majority Banks party thereto, or (y) the conditions precedent set
forth in Section 8.01(b) are not satisfied both before and after giving effect
to the requested extension, then in either case the Scheduled Maturity Date
shall take place as scheduled.
(b) By delivery of the written notice referred to in subsection (a)
above no later than November 15, 1995, the Company may request an extension of
the Scheduled Maturity Date to December 31, 1998. If the Scheduled Maturity
Date is so extended, the Company may request a further extension of the
Scheduled Maturity Date to December 31, 1999 by an additional delivery of such
written notice no later than November 15, 1996.
SECTION 15.08. Replacement or Removal of a Bank or Issuing Bank in
Replacement or Removal of a Bank or Issuing Bank in the Event of an Adverse
Condition. (i) In the event a Bank or an Issuing Bank (an "Affected Bank")
shall have: (a) failed to fund its Applicable Pro Rata Share of any Loan
requested by the Company which such Bank is obligated to fund under the terms
of this Agreement and such failure has not been cured, (b) failed to fund its
Aggregate Pro Rata Share of a payment to the applicable Agent on behalf of an
Issuing Bank which such Bank is obligated to fund under the terms of this
Agreement and such failure has not been cured, (c) either repudiated its
obligations under this Agreement or failed to reaffirm such obligations in
writing within five (5) Business Days of a written request therefor from the
Administrative Agent or any Issuing Bank, (d) delivered to the Company a
notice described in Section 15.08(vi), (e) made demand for additional amounts
pursuant to Section 9.04 or 9.05 as a result of any condition described in any
such Section, or (f) declined to consent to an extension of the Scheduled
Maturity Date pursuant to Section 15.07, then, unless such Affected Bank has
theretofore taken steps to remove or cure, and has removed or cured, such
failure or the circumstances described in such notice or the condi-tions
creating the cause for such demand for such addi-tional amounts, as the case
may be, the Company may:
(A) with respect to such Affected Bank's rights and
obligations as a Bank hereunder, either:
(x) designate another financial institution acceptable to
the Agents and the Issuing Banks (such institution being herein called a
"Replacement Bank") to purchase the Notes of the Affected Bank and such
Affected Bank's rights and obligations as a Bank here-under, without recourse
to or warranty by, or expense to, such Affected Bank for a purchase price
equal to the outstanding principal amount of the Notes payable to such
Affected Bank plus any accrued but unpaid interest on such Notes and, if
applicable, accrued but unpaid fees and expenses owed hereunder or in
connection herewith, in each case owing to the Affected Bank in its capacity
as a Bank, and upon such purchase and the payment of the additional amounts
described above and all other Obligations owing to such Affected Bank as a
Bank, such Affected Bank shall no longer be a Bank or have any rights as a
Bank hereunder (other than rights to indemnification pursuant to Section 9.12
or Section 15.04), and the Replacement Bank shall succeed to such rights and
obligations of such Affected Bank hereunder; or
(y) pay to such Affected Bank an amount equal to the
outstanding principal amount of the Notes payable to such Affected Bank plus
any accrued but unpaid interest on such Notes and, if applicable, accrued but
unpaid fees and expenses owed hereunder or in connection herewith, in each
case owing to the Affected Bank in its capacity as a Bank, and upon such
payment of the additional amounts described above and all other Obligations
owing to such Affected Bank as a Bank, such Affected Bank shall no longer be
a Bank or have any rights as a Bank hereunder (other than rights to
indemnification pursuant to Section 9.12 or Section 15.04); and
(B) with respect to such Affected Bank's rights and
obligations as an Issuing Bank (if any) hereunder, pay to such Affected Bank
an amount equal to the outstanding principal amount of the Notes payable to
such Affected Bank plus any accrued but unpaid interest on such Notes and, if
applicable, accrued but unpaid fees and expenses owed hereunder or in
connection herewith, in each case owing to the Affected Bank in its capacity
as an Issuing Bank, and upon such payment of the additional amounts described
above and all other Obligations owing to such Affected Bank as an Issuing
Bank, such Affected Bank shall no longer be an Issuing Bank or have any
rights as an Issuing Bank hereunder (other than rights to indemnification
pursuant to Section 9.12 or Section 15.04).
(ii) Simultaneously with the removal of an Affected Bank pursuant
to Section 15.08(i)(A)(y) above, the Company shall effect a Reallocation in
accordance with the provisions of Article VIII, pursuant to which the Company
shall reduce the Commitments by the amount of such Affected Bank's Commitment.
(iii) In the event of the removal of the Issuing Bank under Tranche
A, Tranche B or Tranche C pursuant to Section 15.08(i)(B) above, the Company
shall cause all Foreign Ancillary Obligations supported by such Tranche to be
paid in full, together with all funding indemnities and all other amounts
payable thereunder to the appropriate Foreign Ancillary Lenders, whereupon (A)
such Issuing Bank's Letter of Credit shall be terminated and (B) the
applicable Tranche Commitment shall terminate (subject to reinstatement
pursuant to Section 8.03).
(iv) In the event of the removal of the Issuing Bank under Tranche
E pursuant to Section 15.08(i)(B) above, the Company shall, at its option,
either (A) cease the issuance of Series 1 CP Notes, and upon payment in full
of all such outstanding Series 1 CP Notes entitled to the benefit of the
Tranche E Letter of Credit, terminate the Tranche E Letter of Credit pursuant
to Section 6.01(e)(i)(A), or (B) replace such Issuing Bank in accordance with
the provisions of Section 6.01(e)(iv).
(v) If the removed or replaced Affected Bank is also an Agent
hereunder, such Affected Bank shall resign in its capacities as Agent in
accordance with Section 14.07.
(vi) Each Bank agrees to use its best efforts to notify the Company
as promptly as practicable upon such Bank's becoming aware that circumstances
exist which would cause the Company to become obligated to pay additional
amounts to such Bank pursuant to Section 9.04 or 9.05; provided, that the
failure by any Bank to give such notice shall not affect the obligations of
the Company under such Sections.
Section 15.09. Confidentiality. Each Bank agrees to hold confidential all
non-public information (which has been identified as such by the Company or
any Subsidiary of the Company) obtained pursuant to the requirements of this
Agreement in accordance with its customary procedures for handling
confidential information of such nature and in accordance with safe
banking practices; it being understood that any Bank may disclose such
information to any of its examiners, Affiliates (other than any Affiliate
engaged in the leasing business), outside auditors, counsel and other
professional advisors in connection with this Agreement or to any actual or
prospective assignee or participant or as required or requested by any
governmental agency or representative thereof or pursuant to legal process;
provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Bank shall make reasonable efforts to notify the Company of any
request by any governmental agency or representative thereof (other than any
such request in connection with an examination of the financial condition of
such Bank by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and
(b) prior to any disclosure of non-public information to an
actual or prospective assignee or participant, each Bank shall require the
Person receiving such disclosure to agree in writing (i) to be bound by this
Section 15.09; and (ii) to require any other Person to whom such Person
discloses such non-public information to be similarly bound by this Section
15.09.
Section 15.10. Change in Accounting Principles. Except as otherwise
provided herein, if any changes in GAAP from the principles in effect on and
as of the Closing Date are hereafter required or permitted by the rules,
regulations, pronouncements and opinions of the Financial Accounting
Standards Board of the American Institute of Certified Public Accountants
(or successors thereto or agencies with similar functions) and are adopted by
the Company with the agreement of its independent certified public
accountants and such changes result in a change in the method of calculation
of any of the financial covenants, standards or terms found in Section 12.04
hereof, the parties hereto agree to enter into negotiations in order to amend
such provisions so as to equitably reflect such changes with the desired
result that the criteria for evaluating the Company's financial condition
shall be the same after such changes as if such changes had not been made,
provided, however, that no change in GAAP that would affect the method of
calculation of any of the financial covenants, standards or terms shall be
given effect in such calculations until such provisions are amended, in a
manner satisfactory to the Majority Banks, to so reflect such change in GAAP.
Section 15.11. Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant
shall not avoid the occurrence of an Event of Default or Unmatured Event of
Default if such action is taken or condition exists.
Section 15.12. Survival of Warranties and Agreements. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the other Credit Documents and the making and
repayment of the Loans and Reimbursement Obligations hereunder.
Section 15.13. Payments Set Aside. To the extent that the Company or any
other Multicurrency Borrower makes a payment or payments to the Agents or the
Banks or the Issuing Banks, or the Agents or the Banks or the Issuing Banks
exercise their rights of set-off, and such payment or payments or the proceeds
of such set-off or any part thereof are subsequently invalidated, declared to
be fraudulent or preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all rights and remedies therefor, shall be revived and continued in full
force and effect as if such payment had not been made or such set-off had not
occurred.
Section 15.14. Severability. In case any provision in or obligation under
this Agreement or the Notes or the other Credit Documents shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 15.15. Headings. Article and section headings in this Agreement
are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose or be given any
substantive effect.
Section 15.16. Governing Law. This Agreement shall be governed by, and
shall be construed and enforced in accordance with, the laws (including,
without limitation, Section 5-1401 of the General Obligations Laws, but
otherwise without regard to conflicts of laws principles) and decisions of
the State of New York.
Section 15.17. Limitation of Liability. To the extent permitted by
applicable law, no claim may be made by the Company, any other Multicurrency
Borrower, any Bank, any Issuing Bank or any other Person against the Agents
or any other Bank or Issuing Bank or the Affiliates, directors, officers,
employees, attorneys or agents of any of them for any special, indirect,
consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by the Credit Documents, or any act, omission or
event occurring in connection therewith; and the Company, each other
Multicurrency Borrower and each Bank and Issuing Bank hereby waives, releases
and agrees not to sue upon any claim for any such damages, whether or not
accrued and whether or not known or suspected to exist in its favor.
Section 15.18. Consent to Jurisdiction and Service of Process. All
judicial proceedings brought against the Company or any other Multicurrency
Borrower with respect to this Agreement or any other Credit Document may be
brought in any state or federal court of competent jurisdiction in the State
of New York, and by execution and delivery of this Agreement or the
applicable Multicurrency Borrower Assumption Agreement, the Company and each
other Multicurrency Borrower accepts, for itself and in connection with its
properties, generally and unconditionally, the nonexclusive jurisdiction of
the aforesaid courts, and irrevocably agrees to be bound by any final
judgment rendered thereby in connection with this Agreement or any of the
other Credit Documents from which no appeal has been taken or is available.
The Company and each other Multicurrency Borrower waives personal service
upon it, and irrevocably designates and appoints CT Corporation System,
1633 Broadway, New York, New York 10019, as its agent to receive on its
behalf service of all process in any such proceedings in any such court, such
service being hereby acknowledged by the Company and each other Multicurrency
Borrower to be effective and binding service in every respect. The Company
and each other Multicurrency Borrower irrevocably consents to the service of
process of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to its notice address referred to in Section 15.02, such service to
become effective ten (10) days after such mailing. EACH OF THE COMPANY, THE
OTHER MULTICURRENCY BORROWERS, THE AGENTS, THE ISSUING BANKS AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. Nothing herein shall affect
the right to serve process in any other manner permitted by law or shall
limit the right of the Agents, any Issuing Bank or any Bank to bring
proceedings against the Company or any other Multicurrency Borrower in the
courts of any other jurisdiction.
Section 15.19. Waiver of Jury Trial. EACH OF THE COMPANY, THE OTHER
MULTICURRENCY BORROWERS, THE AGENTS, THE ISSUING BANKS AND THE BANKS
IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG ANY OF THE PARTIES HERETO
ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT. 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 15.20. Counterparts; Effectiveness; Inconsistencies. This
Agreement and any amendments, waivers, consents, or supplements may be
executed in counterparts, each of which when so executed and delivered shall
be deemed an original, but all such counterparts together shall constitute
but one and the same instrument. This Agreement shall become effective
against the Company, each Bank, each Issuing Bank and the Agents hereto on
the Closing Date, and against each other Multicurrency Borrower on the
effective date of its Multicurrency Borrower Assumption Agreement. This
Agreement and each of the other Credit Documents shall be construed to the
extent reasonable to be consistent one with the other, but to the extent that
the terms and conditions of this Agreement are actually inconsistent with the
terms and conditions of any other Credit Document, this Agreement shall
govern.
Section 15.21. Construction. The parties acknowledge that each party and
its counsel have reviewed and revised this Agreement and that the normal rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
Section 15.22. Entire Agreement. This Agreement, taken together with all
of the other Credit Documents and all certificates and other documents
delivered by the Company and the other Multicurrency Borrowers to the Agents,
the Banks or the Issuing Banks, embodies the entire agreement and supersedes
all prior agreements, written and oral, relating to the subject matter hereof.
Section 15.23. Replacement of the Second Amended Agreement. (a) On the
Closing Date, (i) the Second Amended Agreement shall cease to be of any force
or effect, (ii) the "Agents," the "Issuing Banks" and the "Letters of Credit"
thereunder shall be replaced by the corresponding Agents, Issuing Banks and
Letters of Credit hereunder, and (iii) each of the financial institutions
listed on the signature pages hereof shall be Banks hereunder.
Notwithstanding anything in the Second Amended Agreement or elsewhere to the
contrary, the replacement of the "Agents," the "Issuing Banks" and the
"Letters of Credit" accomplished hereby are each deemed to have occurred in
accordance with and in satisfaction of all requirements with respect thereto
set forth in the Second Amended Agreement and elsewhere, and consent is
hereby expressly given to each such replacement.
(b) In addition to the foregoing, each of the "Notes" issued under
the Second Amended Agreement (the "Original Notes") shall become of no further
force or effect on the Closing Date, and shall be deemed replaced in full by
the Notes issued hereunder. The Notes are issued in substitution for, and not
in payment of, the Original Notes, and the issuance, delivery and substitution
of the Notes are in no way intended to constitute a novation of the Original
Notes. Each Bank shall use its reasonable efforts to return the Original Note
issued to it to the Company for cancellation on or before the Closing Date;
provided, that in the event any one or more Banks fail to return their
respective Original Notes on or before the Closing Date, the Closing Date
shall nevertheless occur, and each such Bank agrees to indemnify and hold the
Company harmless from and against any and all liability, loss, damage and
expense, including legal fees and expenses, in connection with, or arising out
of, the issuance of such Bank's Notes or the failure to return such Original
Note.
Section 15.24. Additional Banks. The Company may, with the prior written
consent of the Administrative Agent and the Issuing Banks, add additional
Banks to this Agreement. Each such additional Bank shall execute a
supplemental counterpart to this Agreement setting forth the Commitment of
such additional Bank and its Applicable Pro Rata Shares as computed by the
Administrative Agent as of the effective date of such new Bank's addition to
the Agreement. The Administrative Agent shall notify each existing Bank in
writing of the increased Commitments and each Bank's revised Applicable Pro
Rata Shares as of the effective date of such new Bank's addition to the
Agreement. Upon the execution and delivery of such supplemental counterpart
the new Bank shall be deemed automatically to have become a party hereto.
The Company and each other Multicurrency Borrower shall, within five Business
Days thereafter, execute and deliver to the Administrative Agent, for
delivery to the new Bank, Notes evidencing such Bank's assigned Loans, unpaid
Reimbursement Obligations and Commitment hereunder. With respect to
outstanding Loans, the additional Bank shall promptly fund its Domestic
Revolver Pro Rata Share of Base Rate Loans, by making payment thereof to the
Tranche D Agent for distribution to the other Banks. In the case of
Eurocurrency Rate Loans, such funding shall be made on the last day of the
then current Interest Period of each such Eurocurrency Rate Loan and the
Banks' Applicable Pro Rata Shares in each such outstanding Eurocurrency Rate
Loan shall not be adjusted by virtue of the addition of such new Bank until
the last day of such Interest Period. Unless otherwise specified by the
Company to the Administrative Agent in writing prior to the new Bank's
addition to this Agreement under this Section 15.24, the increase in the
Commitments created by the addition of such new Bank shall be allocated to
Tranche D as of the effective date of such new Bank's addition to the Agreement.
Section 15.25. Company as Agent for Other Multicurrency Borrowers. Each
Multicurrency Borrower (other than the Company) hereby appoints the Company
as its agent for purposes of giving notice to or otherwise advising the Agents,
the Issuing Banks or the Banks in such instances where this Agreement calls
for notice or advice from a Multicurrency Borrower or the Multicurrency
Borrowers generally.
Section 15.26. Judgment Currencies. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due under this
Agreement or under any of the Notes in any currency (the "Original Currency")
into another currency (the "Other Currency"), the parties hereto agree, to
the fullest extent permitted by law, that the rate of exchange used shall be
that at which, in accordance with normal banking procedures, the
Administrative Agent could purchase the Original Currency with the Other
Currency on the Business Day preceding that on which final judgment is given.
To the fullest extent permitted byapplicable law, the sum due in the
Original Currency to any Agent or any Bank shall, notwithstanding any
judgment in an Other Currency, be discharged only to the extent that on the
Business Day following receipt by such Agent or such Bank
as applicable, of any sum adjudged to be so due in the Other Currency, such
Agent or such Bank, as applicable, may in accordance with normal banking
procedures purchase the Original Currency with the Other Currency; if the
amount of the Original Currency so purchased is less than the sum originally
due to such Agent or such Bank, as applicable, in the Original Currency, the
applicable Multicurrency Borrower or Multicurrency Borrowers agree, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Agent or such Bank, as applicable, against such loss, and if the amount of the
Original Currency so purchased exceeds the sum originally due such Agent or
such Bank in the Original Currency, such Agent or such Bank, as applicable,
agrees to remit to the applicable Multicurrency Borrower or Multicurrency
Borrowers such excess.
[Remainder of Page Intentionally Left Blank]
<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.
COMDISCO, INC.
By _
Edward A. Pacewicz
Vice President/Finance
<PAGE>
Commitment
$28,666,667.00 CITIBANK, N.A., as Administrative
Agent, as Tranche A Agent, as an
Issuing Bank, as a Multicurrency
Bank and as a Bank
By _
Name:
Title:
Address:
c/o Citicorp North America, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-1050
<PAGE>
Commitment
$28,666,666.00 NATIONSBANK OF NORTH CAROLINA, N.A.,
as Tranche D Agent, as Tranche E
Agent, as Bid Agent, as an Issuing
Bank, as a Multicurrency Bank and as
a Bank
By_________________________________
Name:
Title:
Address:
70 West Madison Street
Suite 5300
Chicago, Illinois 60602
Attention: Michael S. Zehfuss
Telephone: (312) 853-5795
Telecopy: (312) 372-9194
<PAGE>
Commitment
$12,000,000.00 WESTPAC BANKING CORPORATION, as
Tranche B Agent, as an Issuing Bank,
as a Multicurrency Bank and as a
Bank
By _
Name:
Title:
Address:
335 Madison Avenue
New York, New York 10017-4681
Attention: Craig Jones
Telephone: (212) 551-2700
Telecopy: (212) 850-7898
<PAGE>
Commitment
$20,666,667.00 THE BANK OF TOKYO, LTD., CHICAGO
BRANCH, as Tranche C Agent, as an
Issuing Bank and as a Bank
By _
Name:
Title:
Address:
69 West Washington Street
Chicago, Illinois 60602
Attention: Dino Janis
Telephone: (312) 236-4973
Telecopy: (312) 236-8268
<PAGE>
Commitment
$0 CITIBANK INTERNATIONAL PLC,
as Tranche F Agent
By _
Name:
Title:
Address:
Citibank International plc
Riverdale House
68 Molesworth Street
Lewisham SE13 7EU England
Attention: Kenneth Purchase
Loans Agency
Telephone: 4481-297-4243
Telecopy: 4471-500-4482
<PAGE>
Commitment
$15,333,333.00 THE FIRST NATIONAL BANK OF BOSTON,
as a Multicurrency Bank and as a
Bank
By _
Name:
Title:
Address:
100 Federal Street
Boston, Massachusetts 02110
Attention: Rod Guinn
Telephone: (617) 434-7690
Telecopy: (617) 434-6684
<PAGE>
Commitment
$10,000,000.00 CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Multicurrency Bank and as a
Bank
By _
Name:
Title:
Address:
55 East Monroe Street
Chicago, Illinois 60603
Attention: Laurence Grant
Telephone: (312) 917-7456
Telecopy: (312) 372-2830
<PAGE>
Commitment
$10,000,000.00 COMERICA BANK, as a Bank
By _
Name:
Title:
Address:
National Corporate Banking
500 Woodward Avenue
M/C 3279
Detroit, Michigan 48226
Attention: Theresa M. Owen
Telephone: (313) 222-3818
Telecopy: (313) 222-3330
<PAGE>
Commitment
$20,666,667.00 CIBC, INC., as a Multicurrency Bank
and as a Bank
By _
Name:
Title:
Address:
275 Battery Street
Suite 1840
San Francisco, California 94111
Attention: Tom R. Wagner
Telephone: (415) 399-5744
Telecopy: (415) 399-5761
<PAGE>
Commitment
$12,000,000.00 BANK HAPOALIM, as a Bank
By _
Name:
Title:
By _
Name:
Title:
Address:
174 North Michigan Avenue
Chicago, Illinois 60601
Attention: Philip Langheim
Phone: (312) 407-9463
Fax: (312) 621-1985
<PAGE>
Commitment
$10,000,000.00 U.S. BANK OF OREGON, as
a Bank
By _
Name:
Title:
Attention:
National Corporate Banking
309 S.W. Sixth Avenue, BB-10
Portland, Oregon 97204
Attention: Jeffrey Swift
Telephone: (503) 275-6381
Telecopy: (503) 275-4346
<PAGE>
Commitment
$20,666,667.00 THE FUJI BANK, LIMITED,
as a Bank
By _
Name:
Title:
Attention:
The Fuji Bank, Limited, Chicago Branch
225 West Wacker Drive
Suite 2000
Chicago, Illinois 60606
Attention: Stephen P. Peca
Telephone: (312) 621-9484
Telecopy: (312) 621-0539 or
(312) 419-3677
<PAGE>
Commitment
$15,333,333.00 THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By _
Name:
Title:
Address:
10 South Wacker Drive
Chicago, Illinois 60606
Attention: Ken Eichwald
Telephone: (312) 368-3006
Telecopy: (312) 346-6677
<PAGE>
Commitment
$20,666,667.00 THE YASUDA TRUST & BANKING CO., LTD.,
as a Multicurrency Bank and as a
Bank
By _
Name:
Title:
Address:
181 West Madison Street
Suite 4500
Chicago, Illinois 60602
Attention: Douglas B. Warren
Telephone: (312) 683-3839
Telecopy: (312) 683-3899
<PAGE>
Commitment
$15,333,333.00 THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH, as a
Multicurrency Bank and as a Bank
By _
Name:
Title:
Address:
190 South LaSalle Street
Suite 800
Chicago, Illinois 60603
Attention: John Carley
Telephone: (312) 853-9516
Telecopy: (312) 704-8505
<PAGE>
Commitment
$20,666,667.00 MELLON BANK, N.A., as a Multicurrency
Bank and as a Bank
By _
Name:
Title:
Address:
c/o Mellon Financial Services
55 West Monroe Street
Suite 2600
Chicago, Illinois 60603
Attention: Reginald T. Overton
Telephone: (312) 357-3402
Telecopy: (312) 357-3414
<PAGE>
Commitment
$15,333,333.00 THE SAKURA BANK, LTD., as
a Bank
By _
Name:
Title:
Address:
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Attention: Laird Schaefer
Telephone: (312) 201-5128
Telecopy: (312) 332-5345
<PAGE>
Commitment
$12,000,000.00 NBD BANK, N.A., as a Multicurrency
Bank and as a Bank
By _
Name:
Title:
Address:
Midwest Banking Division
611 Woodward
Detroit, Michigan 48226
Attention: Dan McCarty
Telephone: (313) 225-____
Telecopy: (313) 225-3074
<PAGE>
Commitment
$12,000,000.00 SOCIETE GENERALE, as a Bank
By _
Name:
Title:
By _
Name:
Title:
Address:
181 West Madison Street
Chicago, Illinois 60602
Attention: May Mallouh
Telephone: (312) 578-5166
Telecopy: (312) 578-5099
