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
December 13, 1996
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
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Item 7. Financial Statements and Exhibits
(c) Exhibits
10.01 Fourth Amended and Restated Global Credit Agreement Dated as
of December 18, 1995 among Comdisco, Inc., the Subsidiaries of
the Company party hereto as Multicurrency Borrowers, the banks
party hereto as Banks Nationsbank, N.A., as Bid Agent,
Citicorp International, LTD., as Asia Bid Agent and Citibank,
N.A., as Administrative Agent
10.02 Amendment to Credit Agreement dated as of December 20, 1994
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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: December 13, 1996 by: /s/ David J. Keenan
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David J. Keenan
Vice President and
Corporate Controller
U.S. $300,000,000
FOURTH AMENDED AND RESTATED
GLOBAL CREDIT AGREEMENT
Dated as of December 18, 1995
Among
COMDISCO, INC.
as the Company
THE SUBSIDIARIES OF THE COMPANY PARTY HERETO
as Multicurrency Borrowers
THE BANKS PARTY HERETO
as Banks
NATIONSBANK, N.A.
as Bid Agent
CITICORP INTERNATIONAL, LTD.
as Asia Bid Agent
and
CITIBANK, N.A.
as Administrative Agent
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EXHIBITS
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 D-1A - Form of Notice of Asia 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 I-4 - Form of Asia Bid Rate 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
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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FOURTH AMENDED AND RESTATED
GLOBAL CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED GLOBAL CREDIT AGREEMENT, dated
as of December 18, 1995 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, N.A., in its capacity as Bid Agent for the Banks hereunder,
CITICORP INTERNATIONAL, LTD., in its capacity as Asia 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 Third Amended
Agreement;
WHEREAS, the parties hereto have agreed to amend and restate in
its entirety the Third Amended Agreement as hereinafter set forth; and
WHEREAS, it is the intent of the parties hereto that this
Agreement replace in its entirety the Third Amended Agreement, and that from and
after the Closing Date, the Third 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
DEFINITIONS AND ACCOUNTING TERMS
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.
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"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 (contingent 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 otherwise), 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,
the Asia 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.
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"Agreement" means this Fourth 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, (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, and (iv) the office of such Bank notified by such Bank to
the Asia Bid Agent as its applicable lending office in the case of an
Asia Bid Rate Loan.
"Applicable Margin Rate" means, as of any date of determination,
a per annum rate equal to the rate set forth below opposite the then
applicable Performance Level set forth below:
Performance Level Applicable Margin Rate
Level 1 0.275%
Level 2 0.300%
Level 3 0.3625%
"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.
"Asia Bid Agent" means Citicorp International, Ltd. in
its capacity as agent for the Banks under the auction
bidding procedure described in Section 5.03A, and shall
include any successor Asia Bid Agent appointed pursuant to
Section 14.07.
"Asia Bid Rate Borrowing" means a borrowing consisting of
simultaneous Asia Bid Rate Loans made to the Asian Ancillary Borrowers
from each of the Banks whose offer to make an Asia Bid Rate Loan as part
of such borrowing has been accepted by the Company under the auction
bidding procedure described in Section 5.03A.
"Asia Bid Rate Loan" means a loan by a Bank to an Asian
Ancillary Borrower as part of an Asia Bid Rate Borrowing resulting from
the application of the auction bidding procedure described in Section
5.03A.
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"Asia Bid Rate Note" means a promissory note of an Asian
Ancillary Borrower payable to the order of any Asian Bank, in
substantially the form of Exhibit I-4 hereto, evidencing the Obligations
of the Asian Ancillary Borrower to such Bank in respect of Asia Bid Rate
Loans.
"Asian Bank" means a Bank which is able to make Asia Bid Rate
Loans without being subject to Taxes as set forth in Section 9.05.
"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
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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, an Asia Bid Rate Borrowing, or a Multicurrency
Borrowing, as the case may be.
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"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, (i) if the applicable Business Day
relates to any Eurocurrency Rate Loans, on which dealings are carried on
in the London interbank market and (ii) if the applicable Business Day
relates to any Asia Bid Rate Loan, on which dealings are carried on in
Hong Kong and in the country in which the respective Asian Bank(s)
making such Asia Bid Rate Loan are funding the same.
"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.
"Citicorp International, Ltd." means Citicorp International,
Ltd., a company organized and existing under the laws of Hong Kong.
"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
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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
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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.
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"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.
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"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
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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 corporations (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 partnership, 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.
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"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).
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"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.
"Facility Margin Rate" means, as of any date of determination, a
per annum rate equal to the rate set forth below opposite the then
applicable Performance Level set forth below:
Performance Level Facility Margin Rate
Level 1 0.125%
Level 2 0.150%
Level 3 0.1875%
"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).
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"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)
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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 arrangement, 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,
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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 Subsidiaries 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, Asia
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
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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
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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, 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, an Asia Bid Rate Note, a
Company Note or a Multicurrency Note.
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"Notice of Asia Bid Rate Borrowing" has the meaning
specified in Section 5.03A(b)(i).
"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 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.
"Performance Levels" means, collectively, Performance
Level 1, Performance Level 2, and Performance Level 3; and "Performance
Level" means, any of Performance Level 1,
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Performance Level 2, or Performance Level 3. For purposes of
determination of a given Performance Level, (i) if either Standard &
Poor's Rating Group or Moody's Investors Service, Inc. does not, at any
given date, have in effect a rating designated in the definition of
Performance Level 1 or Performance Level 2, then Performance Level 3
shall be deemed to be the applicable Performance Level; (ii) if the
ratings of the respective rating agencies fall within different
Performance Levels, the applicable Performance Level shall be determined
based upon the higher of the two ratings; (iii) if the rating by either
rating agency shall be changed (other than as a result of a change in
the rating system of such rating agency), such change shall be effective
as of the date on which it is first announced by such rating agency and
continue effective until the date immediately preceding the effective
date of the next subsequent change. If the rating system of either
rating agency shall change, or if either rating agency shall cease to be
in the business of rating corporate debt obligations or shall not have
in effect a rating for reasons outside the control of the Company, the
parties hereto shall negotiate in good faith to amend this definition to
reflect such changed rating system or the absence of such rating and,
pending the effectiveness of any such amendment, the applicable
Performance Level shall be determined by reference to the rating from
the other rating agency specified.
"Performance Level 1" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior unsecured, non-credit enhanced Indebtedness
of the Company is rated at least BBB+ by Standard & Poor's Rating Group
or Baa1 by Moody's Investors Service, Inc.
"Performance Level 2" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior unsecured, non-credit enhanced Indebtedness
of the Company is rated lower than that required for Performance Level
1, but is rated at least BBB by Standard & Poor's Rating Group or Baa2
by Moody's Investors Service, Inc.
"Performance Level 3" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior unsecured, non-credit enhanced Indebtedness
of the Company is rated lower than that required for Performance Level
2.
"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).
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"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
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any certificate of occupancy, zoning ordinance, building, environmental
or land use requirement, approval, permit or license or occupational
safety or health law, rule or regulation.
"Sale and Leaseback" has the meaning specified in
Section 12.03(d).
"Scheduled Maturity Date" means December 31, 1998, as such date
may be extended pursuant to Section 15.07.
"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
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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.
"Third Amended Agreement" means that certain Third Amended and
Restated Global Credit Agreement dated as of December 20, 1994 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.
"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
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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 Nine Million Dollars ($9,000,000), 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 Forty-Nine Million Dollars ($49,000,000), 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 an 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
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of this Agreement, and shall on the Closing Date be in an amount equal
to One Hundred Ninety-Seven Million Dollars ($197,000,000), 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 and Asia 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 zero Dollars ($0.00), 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.
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"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 ($0.00), 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
the aggregate outstanding Asia 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 sum of the aggregate outstanding
Bid Rate Loans plus the aggregate outstanding Asia Bid Rate Loans plus
the Commitments under the Letter of Credit Tranches of all of the Banks
at such time.
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"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
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(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.
SECTION 1.03. 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".
SECTION 1.04. 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).
SECTION 1.05. 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
AMOUNT AND TERMS OF THE TRANCHE A SUBFACILITY
SECTION 2.01. The European Letters of Credit. (a) In connection
with the Third 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,
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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
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(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; 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
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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%).
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
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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 Administrative 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 hereunder 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
AMOUNT AND TERMS OF THE TRANCHE B SUBFACILITY
SECTION 3.01. The Western Pacific Letters of Credit. (a) In
connection with the Third 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
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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
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(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; Reimbursement Obligations. (a) In the
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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%).
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
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pay to the Administrative 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 hereunder 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).
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ARTICLE IV
AMOUNT AND TERMS OF THE TRANCHE C SUBFACILITY
SECTION 4.01. The Asian Letters of Credit.
(a) In connection with the Third 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
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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.
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SECTION 4.03. 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%).
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 Administrative 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
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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 hereunder 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
AMOUNTS AND TERMS OF THE TRANCHE D SUBFACILITY
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
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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
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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
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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 5.03. 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, the Bid Rate Loans and the Asia 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
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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 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, 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 Commitment), 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.
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(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
$10,000,000 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
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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.
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(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 5.03A. The Asia Bid Rate Loans.
(a) Each Bank severally agrees that the Asian Ancillary Borrowers
may make Asia Bid Rate Borrowings from the Asian Banks, in local currency
designated by the applicable Asian Ancillary Borrower, under this Section 5.03A
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 Asia Bid Rate
Borrowing, the aggregate amount of the Syndicated Loans, the Bid Rate Loans, and
the Asia 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). 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 Asia Bid Rate Loans (collectively,
the "Asian Ancillary Borrowers' Obligations"), when combined with the aggregate
amount of the Syndicated Loans and the Bid Rate Loans, shall at any time exceed
the Tranche D Commitment 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 Borrowers' Obligations (together with all costs, expenses,
indemnified amounts and other amounts due as a result of such payment or
prepayment to the applicable Asian Bank(s)) necessary to eliminate such excess
or (2) provide the Asian Banks with cash collateral in the amount of such excess
and (ii) to the extent the Asian Ancillary Borrowers do not make such payments
or prepayments or provide such cash collateral, hereby absolutely and
unconditionally guarantees the immediate repayment of such excess to the Tranche
D Agent for the account of the Asian Banks. No Fixed Rate Auctions shall be
available for Asia Bid Rate Loans. Asia Bid Rate Loans shall only be made by
Asian Banks.
(b) The procedures for the solicitation and
acceptance of Asia Bid Rate Loans are as follows:
(i) The Company may request an Asia Bid Rate Borrowing under
this Section 5.03A(b) by delivery to the Asia Bid Agent of written
notice (each, a "Notice of Asia Bid Rate Borrowing"), given not later
than 5:00 P.M. (Chicago time) on the sixth Business Day prior to the
date of the proposed Asia Bid Rate Borrowing (10:00 A.M. (Hong Kong
time) on the fifth Business Day prior to the date of the proposed Asia
Bid Rate Borrowing), with a copy to the Administrative Agent and Tranche
D Agent. Each Notice of Asia Bid Rate Borrowing shall be by telecopier
or other form of teletransmission, in substantially the form of
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Exhibit D-1A hereto, specifying therein (i) the requested date of such
Asia Bid Rate Borrowing (which shall be a Business Day), (ii) the
requested aggregate amount and currency of such Asia Bid Rate Borrowing,
(iii) the interest period applicable to such Asia Bid Rate Borrowing,
(iv) the requested maturity date for repayment of each Asia Bid Rate
Loan to be made as part of such Asia Bid Rate Borrowing (which maturity
date may not be later than the Termination Date), (v) the requested
interest payment schedule with respect to the Asia Bid Rate Loans
comprising such Asia Bid Rate Borrowing, (vi) the account into which the
proceeds of the requested Asia Bid Rate Loan are to be deposited, and
(vii) such other terms as may be applicable to such Asia Bid Rate
Borrowing, and shall be irrevocable when given. The Administrative
Agent, promptly after receipt by it of a Notice of Asia Bid Rate
Borrowing, but before 10:00 A.M. (Hong Kong time) on the fifth Business
Day prior to the date proposed for the applicable Asia Bid Rate
Borrowing, shall confirm to the Asia Bid Agent that the proposed Asia
Bid Rate Borrowing shall not exceed the aggregate Tranche D Commitment
at such time. The Asia Bid Agent shall, promptly after its receipt of
such Notice of Asia Bid Rate Borrowing under this Section 5.03A(b) and
such confirmation from the Administrative Agent, notify each Bank of
such request by sending such Bank a copy of such Notice of Asia Bid Rate
Borrowing.
(ii) Each Bank may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Asia Bid Rate Loans to an
Asian Ancillary Borrower as part of such proposed Asia Bid Rate
Borrowing at a rate or rates of interest specified by such Bank in its
sole discretion, by notifying the Asia Bid Agent, before 2:00 P.M. (Hong
Kong time) on the fourth Business Day prior to the date of such proposed
Asia Bid Rate Borrowing, of the minimum amount and maximum amount of
each Asia Bid Rate Loan which such Bank would be willing to make as part
of such proposed Asia Bid Rate Borrowing (which amounts may, subject to
the proviso to Section 5.03A(a), exceed such Bank's Domestic Revolver
Pro Rata Share of the Tranche D Commitment), the rate or rates of
interest therefor and such Bank's Applicable Lending Office with respect
to such Asia Bid Rate Loan. Such notice to the Asia Bid Agent shall be
irrevocable when given. The Asia Bid Agent shall provide to the Company
copies of the notices received from the Banks on the fourth Business Day
prior to the date of the applicable proposed Asia Bid Rate Borrowing.
(iii) The Company shall, before 5:00 P.M. (Chicago time) on the
fourth Business Day prior to the date of such proposed Asia Bid Rate
Borrowing (10:00 A.M. (Hong Kong time) on the third Business Day prior
to the date of such proposed Asia Bid Rate Borrowing), and in its sole
discretion, either:
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(x) reject any or all of the offered Asia Bid Rate
Loans by delivering a notice of rejection to the Asia Bid Agent
with a copy to the Administrative Agent (which may be by
telephone, confirmed promptly in writing by facsimile), or
(y) accept, subject to Sections 5.03A(c) and (d), any
or all of the offers made by any Bank or Banks pursuant to
paragraph (ii) above, in its sole discretion, by delivering a
notice of acceptance (which may be by telephone, confirmed
promptly in writing by facsimile) to the Asia Bid Agent with a
copy to the Administrative Agent of the amount of each Asia 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 Asia Bid Agent on behalf of such
Bank for such Asia Bid Rate Loan pursuant to paragraph (ii)
above) to be made by each Bank as part of such Asia Bid Rate
Borrowing, and reject any remaining offers made by Banks
pursuant to paragraph (ii) above by giving the Asia Bid Agent
notice to that effect.
If the Company fails to issue to the Asia Bid Agent either of the
notices referenced in paragraph (x) or paragraph (y) above at or prior
to the time prescribed herein, the Company shall be deemed to have
rejected such offers and the Asia Bid Agent shall so notify the offering
Bank(s).
(iv) If the Company notifies the Asia Bid Agent that such Asia
Bid Rate Loan(s) is/are rejected pursuant to paragraph (iii)(x) above,
the Asia Bid Agent shall give prompt notice thereof to the Banks and
such Asia 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 Asia 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 Asia 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, and (B) each Bank that is to make an Asia Bid Rate Loan as part
of such Asia Bid Rate Borrowing as part of such Asia Bid Rate Borrowing,
upon receipt, that the Asia Bid Agent has received forms of documents
appearing to fulfill the applicable conditions set forth in Section
10.02 and Section 10.03A. Each Bank that is to make an Asia Bid Rate
Loan as part of such Asia Bid Rate Borrowing shall, before 1:00 P.M.
(Hong Kong time) on the date of such Asia Bid Rate Borrowing specified
in the notice received from the Asia Bid Agent pursuant to clause (A) of
the preceding sentence or any later time when such Bank shall have
received notice from the Asia Bid
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Agent pursuant to clause (C) of the preceding sentence, deposit to the
account designated by the Company such Bank's portion of such Asia Bid
Rate Borrowing, in the currency(ies) specified by the Company, and in
same day funds. Promptly after each Asia Bid Rate Borrowing the Asia Bid
Agent will notify the Administrative Agent of the amount of the Asia Bid
Rate Borrowing, and the Administrative Agent, in turn, will notify the
Banks of the consequent Bid Rate Reduction and the date upon which such
Bid Rate Reduction commenced and will terminate.
(c) The aggregate amount of Asia Bid Rate Borrowings under a
single Notice of Bid Rate Borrowing shall be in the amount of the Dollar
Equivalent of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
(but in no case may it exceed the aggregate amount of Asia Bid Rate Loans
requested in the applicable Notice of Asia Bid Rate Borrowing). Following the
making of each Asia 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
5.03A(b)(iii)(y) of the offers made in response to a Notice of Asia 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 Asia 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 Asia Bid
Rate Loans so offered bear to one another but, in each case, rounded as the Asia
Bid Agent may consider necessary to ensure that the amount of each such Asia Bid
Rate Loan is the Dollar Equivalent of $500,000 or an integral multiple thereof.
(e) Within the limits and on the conditions set forth in this
Section 5.03A, Asian Ancillary Borrowers may from time to time borrow under this
Section 5.03A, repay pursuant to subsection (f) below, and reborrow under this
Section 5.03A.
(f) The applicable Asian Ancillary Borrower(s) shall repay to
the account designated by each respective Bank which has made an Asia Bid Rate
Loan or (if different) for the account of such Bank as the holder of the
applicable Asia Bid Rate Note, on the maturity date of each Asia Bid Rate Loan
(such maturity date being that specified by the Company for repayment of such
Asia Bid Rate Loan in the related Notice of Asia Bid Rate Borrowing and provided
in the Asia Bid Rate Note evidencing such Asia Bid Rate Loan), the then unpaid
principal amount of such Asia Bid Rate Loan. The applicable Asian Ancillary
Borrower(s) shall not have the right to prepay any principal amount of any Asia
Bid Rate Loan except (i) if, and then only on the terms, specified by the
Company for such Asia
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Bid Rate Loan in the related Notice of Asia Bid Rate Borrowing and set forth in
the Asia Bid Rate Note evidencing such Asia 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 either clause (i) or clause (ii), the Company shall pay, on
demand of such Bank, to the the account designated by such Bank 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 Asia Bid Rate Loan.
(g) The applicable Asian Ancillary Borrower(s) shall pay
interest on the unpaid principal amount of each Asia Bid Rate Loan from the date
of such Asia Bid Rate Loan to the date the principal amount of such Asia Bid
Rate Loan is repaid in full, at the rate of interest for such Asia Bid Rate Loan
specified by the Bank making such Asia Bid Rate Loan in the related notice
submitted by such Bank pursuant to Section 5.03A(b)(ii), payable on the interest
payment date or dates specified by the Company for such Asia Bid Rate Loan in
such Notice of Asia Bid Rate Borrowing, in each case as provided in the Asia Bid
Rate Note evidencing such Asia Bid Rate Loan.
(h) The indebtedness of the Asian Ancillary Borrowers resulting
from each Asia Bid Rate Loan shall be evidenced by an Asia Bid Rate Note payable
to the order of the Bank making such Asia 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 the then applicable Facility Margin Rate 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, 1995, 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 5.06. 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
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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 the then effective Applicable Margin Rate,
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
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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
AMOUNT AND TERMS OF THE TRANCHE E SUBFACILITY
SECTION 6.01. The Tranche E Letter of Credit.
(a) Issuance. In connection with the Third 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
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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,
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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
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(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
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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
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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
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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;
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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
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Aggregate Pro Rata Share of any such amount shall not relieve any other Bank of
its obligation hereunder 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;
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(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;
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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
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successor and such other matters as the Administrative Agent
deems appropriate.
ARTICLE VII
AMOUNT AND TERMS OF THE TRANCHE F SUBFACILITY
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
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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 a 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 the above-described
Notice of Multicurrency Borrowing, the Company (on behalf of the applicable
Multicurrency Borrower) may give the Tranche F Agent telephonic notice of any
proposed Multicurrency Borrowing by the time required under this 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
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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
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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 the then applicable Facility Margin Rate 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, 1995, and on the Termination Date.
SECTION 7.04. Repayment. Each Multicurrency Borrower
shall repay the principal amount of each Multicurrency Loan
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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 the
then effective Applicable Margin Rate, 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
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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
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
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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 and the
Asian Ancillary 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' and Asian Ancillary Borrowers'
Obligations (including, without limitation, interest accruing following the
filing of a bankruptcy petition by or against any such Multicurrency Borrower or
Asian Ancillary 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' and Asian Ancillary 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' or Asian Ancillary Borrowers' Obligations from, or in
prosecuting any action against, any such Multicurrency Borrower or Asian
Ancillary 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,
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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' and Asian Ancillary 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' or Asian Ancillary 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 Asian Ancillary
Borrower, or any insolvency, bankruptcy, reorganization or other similar
proceeding affecting any other Multicurrency Borrower or Asian Ancillary
Borrower or its respective assets;
(iii) any law, regulation or order of any jurisdiction affecting
any term of the Obligations of any other Multicurrency Borrower or any
Asian Ancillary Borrower or any of the rights of any Agent, any Bank or
any Issuing Bank hereunder with respect to the other Multicurrency
Borrowers or Asian Ancillary 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 Asian Ancillary 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' or Asian Ancillary Borrowers'
Obligations whether from or against the other Multicurrency
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Borrowers, the other Asian Ancillary 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 or Asian
Ancillary Borrowers;
(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' or Asian Ancillary 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' or Asian
Ancillary Borrowers' Obligations; or
(ix) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the other Multicurrency
Borrowers, other Asian Ancillary Borrowers, or any other guarantor of
the other Multicurrency Borrowers' or Asian Ancillary 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
(i) 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 or (ii) the Asian Ancillary Borrowers' Obligations, without first
proceeding against the other Asian Ancillary 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 Asian Ancillary Borrower, any guarantor or from any
other Person on account of such Obligations or any other liability of the
Company to any Bank.
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(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
or any Asian Ancillary Borrower, protest or notice with respect to the other
Multicurrency Borrowers' or Asian Ancillary 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 or Asian Ancillary 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 or Asian Ancillary 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, the Asian Ancillary 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' or Asian Ancillary 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, the Asian Ancillary 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' or Asian
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Ancillary 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, the Asian Ancillary 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 respective Obligations of the other
Multicurrency Borrowers and Asian Ancillary 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 or Asian Ancillary Borrowers (as applicable), 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 Asian Ancillary Borrowers' Obligations (as applicable)
or any other liability of the other Multicurrency Borrowers or Asian Ancillary
Borrowers (as applicable) to the Banks.
(f) Subordination. The Company agrees that any and all claims of
the Company against the other Multicurrency Borrowers, the Asian Ancillary
Borrowers, any endorser or any other guarantor of all or any part of the other
Multicurrency Borrowers' Obligations or the Asian Ancillary 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 or Asian Ancillary
Borrowers' Obligations, as applicable.
(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
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be terminated or otherwise revoked until the other Multicurrency Borrowers'
Obligations and Asian Ancillary 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
TRANCHE REALLOCATION AND COMMITMENT REDUCTION
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;
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(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 of the
Syndicated Loans, Bid Rate Loans and Asia 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.
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(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
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$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, the Asia 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
GENERAL TRANCHE PROVISIONS
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
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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,
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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, (4) if made with
respect to the Asia Bid Rate Loans, to the Banks making such Asia Bid Rate Loans
in accordance with each such Bank's pro rata share thereof, and (5) 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 reimbursements 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
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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, the Asia 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 9.02. 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
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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.
SECTION 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
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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
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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
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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
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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
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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
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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 the sum of (i) the then applicable Applicable Margin Rate plus (ii) the
then applicable Facility Margin Rate, in each case 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
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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,
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(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
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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
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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
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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
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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. Notwithstanding
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.
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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,
including, 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
security for the performance or observance of any of
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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
indemnification from the Company by reason of Section 9.12(d).
Section 9.12. 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,
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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
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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. Each Asian Ancillary
Borrower shall execute and deliver an Asia Bid Rate Note to each Bank making an
Asia Bid Rate Loan to such Asian Ancillary Borrower (or to the Asia Bid Agent on
behalf of such Bank, to be retained in the custody of the Asia Bid Agent until
its delivery to the payee Bank by regular mail and at the risk of such payee
Bank) prior to the making of the initial Asia Bid Rate Loan by such Bank.
(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.
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ARTICLE X
CONDITIONS PRECEDENT
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,
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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) 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 Third 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 Third 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) 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).
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(d) 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
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
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thereunder or reinstatement thereof, each delivery of a Notice of Syndicated
Borrowing, a Notice of Multicurrency Borrowing, a Notice of Bid Rate Borrowing,
or a Notice of Asia 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
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.
SECTION 10.03A. Additional Conditions Precedent to Each Asia Bid
Rate Borrowing. The obligation of each Bank to make an Asia Bid Rate Loan on the
occasion of an Asia Bid Rate Borrowing (including the initial Asia Bid Rate
Borrowing) is subject to the additional conditions precedent that (i) at least
five Business Days before the date of such Asia Bid Rate Borrowing, the Asia Bid
Agent shall have received the Notice of Asia Bid Rate Borrowing with respect
thereto, (ii) at least three Business Days before the date of such Asia Bid Rate
Borrowing, the Asia Bid Agent shall have received written confirmatory notice of
such Asia Bid Rate Borrowing to be given by the Company pursuant to Section
5.03A(b)(iii), and (iii) on or before the date of such Asia Bid Rate Borrowing
but prior to such Asia Bid Rate Borrowing, the Asia Bid Agent shall have
received Asia Bid Rate Notes signed by the applicable Asian Ancillary Borrowers
and payable to the order of such Bank for the Asia Bid Rate Loans.
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ARTICLE XI
REPRESENTATIONS AND WARRANTIES
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, 1995 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, 1995, 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 June 30, 1995, 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
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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
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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,
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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) Intentionally Omitted.
(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
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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
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.
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ARTICLE XII
COVENANTS OF THE COMPANY
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
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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 Change in Ratings. Shall promptly notify the
Agents in writing if it receives notice of any increase or decrease in the
ratings of any long term, senior unsecured, non-credit enhanced Indebtedness of
the Company or 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
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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
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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
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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
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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
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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,
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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
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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.
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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.
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ARTICLE XIII
EVENTS OF DEFAULT
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, any other
Multicurrency Borrower or any Asian Ancillary 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
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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,
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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
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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
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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
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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
THE AGENTS
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
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toward or relationship 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, the Bid Agent or the Asia 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. The Agents may rely and act
upon notice given by facsimile transmission by the individuals reasonably
believed by the Agents to be those individuals designated to the Agents, or any
of them, in writing from time to time to possess authority to give such notice,
without any requirement of written confirmation thereof, and the Company hereby
indemnifies and holds harmless each Agent from and against any and all losses,
costs, expenses, damages, claims, actions and other proceedings relating to such
reliance, except for losses, costs, expenses, damages, claims, actions and
proceedings resulting from acts or omissions constituting gross negligence or
willful misconduct on the part of such Agent. If a written
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confirmation is delivered to an Agent after reliance on a given notice which
differs in any respect from the action taken by such Agent, the records of such
Agent shall govern absent manifest error.
(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 instructions 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
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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.
SECTION 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,
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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 the 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
and Asia 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
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this Article XIV shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
ARTICLE XV
MISCELLANEOUS
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
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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 Asia Bid Rate Borrowing
under Section 5.03A 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 and Treasurer
Telephone: (708) 698-3000 or (847) 698-3000*1
Telecopy: (708) 518-5854 or (847) 518-5854*
with a copy to:
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: General Counsel
Telephone: (708) 698-3000 or (847) 698-3000*
Telecopy: (708) 518-5088 or (847) 518-5088*
- --------
1 * numbers to become effective as of January 20, 1996
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(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 Securities, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-6706
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: DeVerille A. Huston
Telephone: (312) 853-7212
Telecopy: (312) 853-7036
(e) If to the Bid Agent:
NationsBank, N.A.
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Attention: Michael S. Zehfuss
Telephone: (312) 234-5625
Telecopy: (312) 234-5601
and/or, as applicable:
NationsBank, N.A.
Agency Services
101 North Tryon Street
15th Floor
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Charlotte, North Carolina 28255
Attention: Molly Canup
Telephone: (704) 386-1316
Telecopy: (704) 386-9923
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: DeVerille A. Huston
Telephone: (312) 853-7212
Telecopy: (312) 853-7036
(f) If to the Asia Bid Agent:
Citicorp International, Ltd.
20/F., Two Harbourfront
22 Tak Fung Street
Hunghom, Kowloon
Hong Kong
Attention: Charles Liu
Telephone: (852) 2306-6622
Telecopy: (852) 2621-3183
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: DeVerille A. Huston
Telephone: (312) 853-7212
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, the Bid Agent
and Asia 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
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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
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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.
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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
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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
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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.
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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, the Bid Agent, and Asia
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
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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, 1996, the Company may request an extension
of the Scheduled Maturity Date to December 31, 1999. If the Scheduled Maturity
Date is so extended, the Company may request a further extension of the
Scheduled Maturity Date to December 31, 2000 by an additional delivery of such
written notice no later than November 15, 1997.
SECTION 15.08. 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 conditions creating
the cause for such demand for such additional 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
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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
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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 and
sound 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
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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.
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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 accor dance 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.
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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.
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SECTION 15.20. Counterparts; Effectiveness; Inconsis tencies.
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 inconsis tent with the terms and conditions of
any other Credit Docu ment, 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 Third Amended Agreement.
(a) On the Closing Date, (i) the Third 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 Third 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 Third 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 Third 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
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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.
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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
by applicable law, the obligation of any Multicurrency Borrower in respect of
any 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]
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<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 and Treasurer
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Commitment
$27,000,000 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 Securities, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-6706
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<PAGE>
Commitment
$27,000,000 NATIONSBANK, 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:
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Attention: Michael S. Zehfuss
Telephone: (312) 234-5625
Telecopy: (312) 234-5601
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<PAGE>
Commitment
$12,000,000 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) 850-7619
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<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: 44171-500-4243
Telecopy: 44171-500-4482
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<PAGE>
Commitment
$ 0 CITICORP INTERNATIONAL, LTD., as
Asia Bid Agent
By__________________________
Name:
Title:
Address:
20/F., Two Harbourfront
22 Tak Fung Street
Hunghom, Kowloon
Hong Kong
Attention: Charles Liu
Telephone: (852) 2306-6622
Telecopy: (852) 2621-3183
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<PAGE>
Commitment
$20,000,000 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
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<PAGE>
Commitment
$15,000,000 THE FIRST NATIONAL BANK OF BOSTON,
as a Multicurrency Bank and as a
Bank
By
Name:
Title:
Address:
100 Federal Street
Mail Stop: 01-09-06
Boston, Massachusetts 02110
Attention: Rod Guinn
Telephone: (617) 434-4588
Telecopy: (617) 434-0630
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<PAGE>
Commitment
$10,000,000 CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Multicurrency Bank and as a
Bank
By
Name:
Title:
Address:
55 East Monroe Street
Chicago, Illinois 60603-5702
Attention: Phillip J. Salter
Telephone: (312) 917-7417
Telecopy: (312) 372-2830
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<PAGE>
Commitment
$10,000,000 COMERICA BANK, as a Bank
By
Name:
Title:
Address:
4747 West Dempster
Skokie, Illinois 60076
Attention: Gregory N. Block
Telephone: (708) 933-20882
Telecopy: (708) 933-2209
- --------
2Area code changes to 847 effective January 20, 1996.
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<PAGE>
Commitment
$20,000,000 CIBC, INC., as a Multicurrency Bank
and as a Bank
By
Name:
Title:
Address:
One Post Street
Suite 3550
San Francisco, California 94104
Attention: Tom R. Wagner
Telephone: (415) 399-5744
Telecopy: (415) 399-5761
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<PAGE>
Commitment
$12,000,000 BANK HAPOALIM, as a Bank
By
Name:
Title:
By
Name:
Title:
Address:
174 North Michigan Avenue
Chicago, Illinois 60601
Attention: Michael J. Byrne
Phone: (312) 407-9460
Fax: (312) 621-1985
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<PAGE>
Commitment
$10,000,000 U.S. BANK OF OREGON, as
a Bank
By
Name:
Title:
Attention:
National Corporate Banking
555 S.W. Oak Street
Suite 400
Portland, Oregon 97204
Attention: Jeffrey Swift
Telephone: (503) 275-6381
Telecopy: (503) 275-5428
-159-
<PAGE>
Commitment
$20,000,000 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
-160-
<PAGE>
Commitment
$15,000,000 THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By
Name:
Title:
Address:
10 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: Kenneth C. Eichwald
Telephone: (312) 368-3006
Telecopy: (312) 346-6677
-161-
<PAGE>
Commitment
$20,000,000 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
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<PAGE>
Commitment
$15,000,000 THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH, as a Bank
By
Name:
Title:
Address:
190 South LaSalle Street
Suite 800
Chicago, Illinois 60606
Attention: John R. Carley
Telephone: (312) 853-9516
Telecopy: (312) 704-8505
-163-
<PAGE>
Commitment
$20,000,000 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: M. James Barry
Telephone: (312) 357-3407
Telecopy: (312) 357-3414
-164-
<PAGE>
Commitment
$15,000,000 THE SAKURA BANK, LIMITED, as
a Bank
By
Name:
Title:
Address:
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Attention: Laird Schaefer
Telephone: (312) 580-1460
Telecopy: (312) 332-5345
-165-
<PAGE>
Commitment
$10,000,000 NBD BANK, as a Multicurrency
Bank and as a Bank
By
Name:
Title:
Address:
Midwest Banking Division
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Daniel J. Clarke, Jr.
Telephone: (313) 225-2058
Telecopy: (313) 225-3074
-166-
<PAGE>
Commitment
$12,000,000 SOCIETE GENERALE, as a Bank
By
Name:
Title:
By
Name:
Title:
Address:
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Attention: May I. Mallouh
Telephone: (312) 578-5166
Telecopy: (312) 578-5099
-167-
<PAGE>
Commitment
$10,000,000 THE FIRST NATIONAL BANK OF CHICAGO, as
a Multicurrency Bank and a Bank
By_____________________________
Name:
Title:
Address:
One First National Plaza
Mail Suite 0084
Chicago, Illinois 60670-0084
Attention: John F. Ide
Telephone: (312) 732-5103
Telecopy: (312) 732-5296
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<PAGE>
Section
Page
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS............................................1
1.01. Certain Defined Terms...........................................1
1.02. Other Definitions..............................................29
1.03. Computation of Time Periods....................................30
1.04. Accounting Terms...............................................30
1.05. Other Definitional Provisions..................................31
ARTICLE II
AMOUNT AND TERMS OF THE TRANCHE A SUBFACILITY..............................31
2.01. The European Letters of Credit.................................31
2.02. European Ancillary Loans.......................................32
2.03. Payments Under the European Letters of Credit;
Reimbursement Obligations...........................................33
2.04. Participations.................................................34
ARTICLE III
AMOUNT AND TERMS OF THE TRANCHE B SUBFACILITY..............................35
3.01. The Western Pacific Letters of Credit..........................35
3.02. Western Pacific Ancillary Loans................................36
3.03. Payments Under the Western Pacific Letters of
Credit; Reimbursement Obligations...........................37
3.04. Participations.................................................38
ARTICLE IV
AMOUNT AND TERMS OF THE TRANCHE C SUBFACILITY..............................40
4.01. The Asian Letters of Credit....................................40
4.02. Asian Ancillary Loans..........................................40
4.03. Payments Under the Asian Letters of Credit;
Reimbursement Obligations...................................42
4.04. Participations.................................................42
ARTICLE V
AMOUNTS AND TERMS OF THE TRANCHE D SUBFACILITY.............................44
5.01. The Syndicated Loans...........................................44
5.02. Making the Syndicated Loans....................................44
5.03. The Bid Rate Loans.............................................46
5.04. Tranche D Facility Fee.........................................55
5.05. Repayment......................................................56
5.06. Interest on Syndicated Loans...................................56
5.07. Voluntary Conversion of Loans..................................56
5.08. Prepayments....................................................57
ARTICLE VI
AMOUNT AND TERMS OF THE TRANCHE E SUBFACILITY..............................58
6.01. The Tranche E Letter of Credit.................................58
6.02. Series 1 CP Notes..............................................60
6.03. Series 1 Related Accounts......................................61
6.04. Drawings Under the Tranche E Letter of Credit..................62
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<PAGE>
Section
Page
6.05. Payments Under the Tranche E Letter of Credit..................63
6.06. Reimbursement..................................................63
6.07. Participations.................................................64
6.08. Termination of Issuance of Series 1 CP Notes...................65
6.09. Removal and Appointment of Commercial Paper
Dealer......................................................68
ARTICLE VII
AMOUNT AND TERMS OF THE TRANCHE F SUBFACILITY..............................68
7.01. The Multicurrency Loans........................................68
7.02. Making the Multicurrency Loans.................................69
7.03. Tranche F Facility Fee.........................................72
7.04. Repayment......................................................72
7.05. Interest.......................................................72
7.06. Prepayments....................................................73
7.07. Removal of a Multicurrency Bank; Additional
Multicurrency Banks.........................................73
7.08. Guaranty.......................................................74
ARTICLE VIII
TRANCHE REALLOCATION AND COMMITMENT REDUCTION..............................79
8.01. Reallocation of the Tranche Commitments........................79
8.02. Reduction of the Commitments...................................82
8.03. Termination and Reinstatement of a Tranche
Commitment..................................................82
ARTICLE IX
GENERAL TRANCHE PROVISIONS.................................................82
9.01. Payments and Computations......................................82
9.02. Right of Set-off...............................................85
9.03. Sharing of Payments, Etc.......................................86
9.04. Increased Costs, Reserves and Capital..........................87
9.05. Taxes..........................................................89
9.06. Fees...........................................................93
9.07. Interest Rate Provisions.......................................93
9.08. Illegality.....................................................95
9.09. Obligations Absolute...........................................96
9.10. Right of Set-Off Against Defaulting Banks......................97
9.11. Participation of the Banks in the Letters of
Credit......................................................99
9.12. Indemnification; Nature of the Duties of
the Issuing Banks..........................................100
9.13. Promissory Notes..............................................102
ARTICLE X
CONDITIONS PRECEDENT .....................................................103
10.01. Conditions Precedent to Closing...............................103
-ii-
<PAGE>
Section
Page
10.02. Conditions Precedent to Each Borrowing,
Letter of Credit, Reallocation and Extension
of Scheduled Maturity Date.................................105
10.03. Additional Conditions Precedent to Each Bid
Rate Borrowing.............................................106
ARTICLE XI
REPRESENTATIONS AND WARRANTIES............................................107
11.01. Representations and Warranties of the Company................107
11.02. Representations and Warranties of the Other
Multicurrency Borrowers...................................111
ARTICLE XII
COVENANTS OF THE COMPANY..................................................112
12.01. Affirmative Covenants........................................112
12.02. Reporting Covenants..........................................114
12.03. Negative Covenants...........................................116
12.04. Financial Covenants..........................................121
ARTICLE XIII
EVENTS OF DEFAULT.........................................................122
13.01. Events of Default............................................122
13.02. Remedies.....................................................125
ARTICLE XIV
THE AGENTS................................................................127
14.01. Authorization and Action.....................................127
14.02. Nature of Agents' Duties.....................................128
14.03. Rights, Exculpation, Etc.....................................128
14.04. Rights as a Bank.............................................130
14.05. Bank Credit Decision.........................................130
14.06. Indemnification..............................................131
14.07. Resignation or Removal of Agents.............................131
ARTICLE XV
MISCELLANEOUS.............................................................132
15.01. Amendments, Etc..............................................132
15.02. Notices......................................................133
15.03. No Waiver; Remedies..........................................136
15.04. Fees and Expenses; Indemnity.................................136
15.05. Successors and Assigns; Subsequent Holders
of Notes..................................................138
15.06. Assignments and Participations...............................138
15.07. Extension of Scheduled Maturity Date.........................141
15.08. Replacement or Removal of a Bank or Issuing
Bank in the Event of an Adverse Condition.................142
15.09. Confidentiality..............................................145
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<PAGE>
Section
Page
15.10. Change in Accounting Principles..............................145
15.11. Independence of Covenants....................................146
15.12. Survival of Warranties and Agreements........................146
15.13. Payments Set Aside...........................................146
15.14. Severability.................................................146
15.15. Headings.....................................................146
15.16. Governing Law................................................147
15.17. Limitation of Liability......................................147
15.18. Consent to Jurisdiction and Service
of Process................................................147
15.19. Waiver of Jury Trial.........................................148
15.20. Counterparts; Effectiveness; Inconsistencies.................148
15.21. Construction.................................................148
15.22. Entire Agreement.............................................148
15.23. Replacement of the Third Amended Agreement...................149
15.24. Additional Banks.............................................149
15.25. Company as Agent for Other Multicurrency
Borrowers.................................................150
15.26. Judgment Currencies..........................................150
-iv-
<PAGE>
AMENDMENT NO. 1
to
CREDIT AGREEMENT
dated as of December 20, 1994
THIS AMENDMENT NO. 1 to CREDIT AGREEMENT ("Amendment") is dated
as of December 18, 1995 and entered into among COMDISCO, INC., a Delaware
corporation, (the "Borrower") the financial institutions from time to time party
to the "Credit Agreement" (as defined below) as Banks, NATIONSBANK, N.A.
(formerly NationsBank of North Carolina, N.A.), in its capacity as Lending Agent
for the Banks under the Credit Agreement, and CITIBANK, N.A., in its capacity as
Administrative Agent for the Banks under the Credit Agreement. Capitalized terms
used herein which are defined in the Credit Agreement shall have the meanings
herein ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Company, the Banks, the Lending Agent, and the
Administrative Agent are parties to that certain Credit Agreement dated as of
December 20, 1994 (the "Credit Agreement");
WHEREAS, the parties to the Credit Agreement have
agreed to amend the Credit Agreement as hereinafter set forth;
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 by the Banks and the Agents,
the parties hereto hereby agree as follows:
1. Amendment to Credit Agreement. Effective as of
December 18, 1995, upon condition of the conditions precedent
set forth in Section 2 below, the Credit Agreement is hereby
amended as follows:
1.1 Section 1.01 is amended to (i) delete the definitions of
"Banks", "Commitment", "Commitment Termination Date", "Global Credit Agreement",
and "NationsBank" in their entirety and substitute the following definitions
therefor:
"Banks" means each of the financial institutions party to this
Agreement and named on the signature pages of Amendment No. 1 to this
Agreement dated as of December 18, 1995 as a Bank or which becomes a
party to this Agreement
-1-
<PAGE>
pursuant to an Assignment and Acceptance from a Bank in
accordance with Section 8.06.
"Commitment" means, for each Bank, the amount set forth opposite
such Bank's name under the heading "Commitment" on the signature pages
of Amendment No. 1 to this Agreement dated as of December 18, 1995 or,
if such Bank has entered into one or more Assignment and Acceptances,
the amount 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;"
"Commitment Termination Date" means December 16, 1996, as such
date may be extended pursuant to Section 8.07.
"Global Credit Agreement" means that certain Fourth Amended and
Restated Global Credit Agreement of even date herewith among the
Company, certain of its Subsidiaries, the financial institutions from
time to time party thereto, NationsBank, as bid agent thereunder,
Citicorp International, Ltd., as Asia bid agent thereunder, and
Citibank, as administrative agent thereunder, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"NationsBank" means NationsBank, N.A., a national banking
association, formerly known as NationsBank of North Carolina, N.A.
and (ii) add the following definitions thereto:
"Applicable Margin Rate" means, as of any date of determination,
a per annum rate equal to the rate set forth below opposite the then
applicable Performance Level set forth below:
Performance Level Applicable Margin Rate
Level 1 0.300%
Level 2 0.325%
Level 3 0.400%
"Facility Margin Rate" means, as of any date of determination, a
per annum rate equal to the rate set forth below opposite the then
applicable Performance Level set forth below:
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<PAGE>
Performance Level Facility Margin Rate
Level 1 0.100%
Level 2 0.125%
Level 3 0.150%
"Performance Levels" means, collectively, Performance Level 1,
Performance Level 2, and Performance Level 3; and "Performance Level"
means, any of Performance Level 1, Performance Level 2, or Performance
Level 3. For purposes of determination of a given Performance Level, (i)
if either Standard & Poor's Rating Group or Moody's Investors Service,
Inc. does not, at any given date, have in effect a rating designated in
the definition of Performance Level 1 or Performance Level 2, then
Performance Level 3 shall be deemed to be the applicable Performance
Level; (ii) if the ratings of the respective rating agencies fall within
different Performance Levels, the applicable Performance Level shall be
determined based upon the higher of the two ratings; (iii) if the rating
by either rating agency shall be changed (other than as a result of a
change in the rating system of such rating agency), such change shall be
effective as of the date on which it is first announced by such rating
agency and continue effective until the date immediately preceding the
effective date of the next subsequent change. If the rating system of
either rating agency shall change, or if either rating agency shall
cease to be in the business of rating corporate debt obligations or
shall not have in effect a rating for reasons outside the control of the
Company, the parties hereto shall negotiate in good faith to amend this
definition to reflect such changed rating system or the absence of such
rating and, pending the effectiveness of any such amendment, the
applicable Performance Level shall be determined by reference to the
rating from the other rating agency specified.
"Performance Level 1" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior unsecured, non-credit enhanced Indebtedness
of the Company is rated at least BBB+ by Standard & Poor's Rating Group
or Baa1 by Moody's Investors Service, Inc.
"Performance Level 2" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior
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<PAGE>
unsecured, non-credit enhanced Indebtedness of the Company is rated
lower than that required for Performance Level 1, but is rated at least
BBB by Standard & Poor's Rating Group or Baa2 by Moody's Investors
Service, Inc.
"Performance Level 3" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior unsecured, non-credit enhanced Indebtedness
of the Company is rated lower than that required for Performance Level
2.
1.2 Section 2.05(a) is amended to delete the provisions thereof
in their entirety and substitute the following therefor:
(a) Fees. The Company agrees to pay to the Administrative Agent,
for the account of each Bank, a facility fee in an amount equal to the then
applicable Facility Margin Rate applied to each Bank's Pro Rata Share of (i) the
average daily Commitments (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 and (ii) the outstanding
Syndicated Loans from the Termination Date until the payment of the Syndicated
Loans in full, in each case payable in arrears (A) during the period commencing
on December 31, 1994 and ending on December 17, 1995, on the last Business Day
of each calendar quarter and on December 18, 1995 and (B) during the period
commencing on December 18, 1995, on (x) the last Business Day of each calendar
quarter, commencing December 31, 1995, (y) the Termination Date and (z) the date
the Syndicated Loans are paid in full.
1.3 Section 2.07(a)(ii) is amended to delete the provisions
thereof in their entirety and substitute the following therefor:
(ii) Eurodollar Rate Loans. If such Loan is a Eurodollar Rate
Loan, a rate per annum equal at all times during the Interest Period for
such Loan to the sum of the Eurodollar Rate for such Interest Period
plus the then effective Applicable Margin Rate, 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.
-4-
<PAGE>
1.4 Section 5.01(k) is amended to delete the provisions thereof
in their entirety and substitute the following therefor:
(k) Notice of Change in Ratings. Shall promptly notify the
Agents in writing if it receives notice of any increase or decrease in the
ratings of any long term, senior unsecured, non-credit enhanced Indebtedness of
the Company or of any of the Company's other publicly-traded debt.
1.5 Section 8.02 is amended to delete the provisions thereof in
their entirety and substitute the following therefor:
SECTION 8.02. 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 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 Syndicated Borrowing under
Section 2.02 hereof, all Notices of Bid Rate Borrowing under Section 2.04
hereof, all Notices of Conversion/Continuation under Section 2.08 hereof and all
notices and communications to the Agents pursuant to Article VII 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 and Treasurer
Telephone: (708) 698-3000 or (847) 698-3000*1
Telecopy: (708) 518-5854 or (847) 518-5854*
- --------
1 * numbers to become effective as of January 20, 1996
-5-
<PAGE>
with a copy to:
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: General Counsel
Telephone: (708) 698-3000 or (847) 698-3000*
Telecopy: (708) 518-5088 or (847) 518-5088*
(b) If to any Bank:
To its address set forth below its name on the signature pages
hereof, with a copy to the Administrative Agent;
(c) If to the Administrative Agent:
Citibank, N.A.
c/o Citicorp Securities, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-6706
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: DeVerille A. Huston
Telephone: (312) 853-7212
Telecopy: (312) 853-7036
(d) If to the Lending Agent:
NationsBank, N.A.
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Attention: Michael S. Zehfuss
Telephone: (312) 234-5625
Telecopy: (312) 234-5601
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<PAGE>
and/or, as applicable:
NationsBank, N.A.
Agency Services
101 North Tryon Street
15th Floor
Charlotte, North Carolina 28255
Attention: Molly Canup
Telephone: (704) 386-1316
Telecopy: (704) 386-9923
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: DeVerille A. Huston
Telephone: (312) 853-7212
Telecopy: (312) 853-7036
1.6 Schedules 1.01 and 4.01(i) to the Agreement are deleted in
their entirety and Schedules 1.01 and 4.01(i) attached hereto substituted
therefor.
2. Conditions to Effectiveness. The amendments set forth in this
Amendment shall become effective as of December 18, 1995 provided that 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 Amendment, executed by the parties hereto,
(ii) The Company 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,
and the other Credit Documents to be delivered by the Company in
connection herewith,
(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,
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<PAGE>
(v) A certificate of good standing of the Company
issued by the Secretaries of State of Illinois and
Delaware,
(vi) A favorable opinion of the General Counsel of the Company,
dated the Closing Date, relating to such matters as the Administrative
Agent and the Lending Agent deem appropriate and in form and substance
satisfactory to each such Agent,
(vii) A favorable opinion of Sidley & Austin, counsel
to the Administrative Agent and the Lending Agent, and
(viii) Such other documentation as the Administrative Agent or
the Lending Agent may reasonably request.
(b) All accrued and unpaid interest, fees and expenses due and
payable by the Company under the Credit Agreement on or prior to December 18,
1995 shall have been paid in full in cash.
(c) 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 and the Banks
(as evidenced by their execution of this Amendment).
(e) Each condition precedent set forth in Section 3.02, and
Section 3.03 of the Credit Agreement, shall be satisfied on and as of December
18, 1995.
3. Representations, Warranties and Covenants.
3.1 The Borrower hereby represents and warrants that this
Amendment and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of the Borrower and are enforceable against the
Borrower in accordance with their terms.
3.2 The Borrower hereby represents and warrants that, before and
after giving effect to this Amendment, no Event of Default or Unmatured Event of
Default has occurred and is continuing.
3.3 The Borrower hereby reaffirms all agreements, covenants,
representations and warranties made in the Credit Agreement, to the extent the
same are not amended hereby, and agrees that all such agreements, covenants,
representations and warranties shall be deemed to have been remade as of the
effective date of this Amendment. To the extent the Credit
-8-
<PAGE>
Agreement is amended hereby to modify or add agreements and covenants, such
agreements and covenants are made as of the date on which this Amendment becomes
effective with respect thereto.
4. Reference to and Effect on the Credit Agreement.
4.1 Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
4.2 Except as specifically amended above, the Credit Agreement
shall remain in full force and effect, and is hereby ratified and confirmed.
4.3 The execution, delivery, and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Agents or Banks, or constitute a waiver of any
provision of any of the Credit Documents.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
6. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
7. Counterparts. This Amendment may be executed by
one or more of the parties hereto on any number of separate
counterparts, each of which shall be deemed an original and all
of which, taken together, shall be deemed to constitute one and
the same instrument.
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 and Treasurer
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<PAGE>
Commitment
$13,500,000 CITIBANK, N.A., as Administrative
Agent and as a Bank
By
Name:
Title:
Address:
c/o Citicorp Securities, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-6706
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<PAGE>
Commitment
$13,500,000 NATIONSBANK, N.A.,
as Lending Agent and as a Bank
By_________________________________
Name:
Title:
Address:
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Attention: Michael S. Zehfuss
Telephone: (312) 234-5625
Telecopy: (312) 234-5601
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<PAGE>
Commitment
$6,000,000 WESTPAC BANKING CORPORATION,
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) 850-7619
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<PAGE>
Commitment
$10,000,000 THE BANK OF TOKYO, LTD., CHICAGO
BRANCH, 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
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<PAGE>
Commitment
$7,500,000 THE FIRST NATIONAL BANK OF BOSTON,
as a Bank
By
Name:
Title:
Address:
100 Federal Street
Mail Stop: 01-09-06
Boston, Massachusetts 02110
Attention: Rod Guinn
Telephone: (617) 434-4588
Telecopy: (617) 434-0630
-14-
<PAGE>
Commitment
$5,000,000 CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Bank
By
Name:
Title:
Address:
55 East Monroe Street
Chicago, Illinois 60603-5702
Attention: Phillip J. Salter
Telephone: (312) 917-7417
Telecopy: (312) 372-2830
-15-
<PAGE>
Commitment
$5,000,000 COMERICA BANK, as a Bank
By
Name:
Title:
Address:
4747 West Dempster
Skokie, Illinois 60076
Attention: Gregory N. Block
Telephone: (708) 933-20882
Telecopy: (708) 933-2209
2 Area code changes to 847 effective January 20, 1996.
-16-
<PAGE>
Commitment
$10,000,000 CIBC, INC., as a Bank
By
Name:
Title:
Address:
One Post Street
Suite 3550
San Francisco, California 94104
Attention: Thomas R. Wagner
Telephone: (415) 399-5744
Telecopy: (415) 399-5761
-17-
<PAGE>
Commitment
$6,000,000 BANK HAPOALIM, as a Bank
By
Name:
Title:
By
Name:
Title:
Address:
174 North Michigan Avenue
Chicago, Illinois 60601
Attention: Michael J. Byrne
Phone: (312) 407-9460
Fax: (312) 621-1985
-18-
<PAGE>
Commitment
$5,000,000 U.S. BANK OF OREGON, as
a Bank
By
Name:
Title:
Attention:
National Corporate Banking
555 S.W. Oak Street
Suite 400
Portland, Oregon 97204
Attention: Jeffrey Swift
Telephone: (503) 275-6381
Telecopy: (503) 275-5428
-19-
<PAGE>
Commitment
$10,000,000 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
-20-
<PAGE>
Commitment
$7,500,000 THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By
Name:
Title:
Address:
10 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: Kenneth C. Eichwald
Telephone: (312) 368-3006
Telecopy: (312) 346-6677
-21-
<PAGE>
Commitment
$10,000,000 THE YASUDA TRUST & BANKING CO., LTD.,
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
-22-
<PAGE>
Commitment
$7,500,000 THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH, as a Bank
By
Name:
Title:
Address:
190 South LaSalle Street
Suite 800
Chicago, Illinois 60606
Attention: John R. Carley
Telephone: (312) 853-9516
Telecopy: (312) 704-8505
-23-
<PAGE>
Commitment
$10,000,000 MELLON BANK, N.A., as a Bank
By
Name:
Title:
Address:
c/o Mellon Financial Services
55 West Monroe Street
Suite 2600
Chicago, Illinois 60603
Attention: M. James Barry
Telephone: (312) 357-3407
Telecopy: (312) 357-3414
-24-
<PAGE>
Commitment
$7,500,000 THE SAKURA BANK, LIMITED, as
a Bank
By
Name:
Title:
Address:
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Attention: Laird Schaefer
Telephone: (312) 580-1460
Telecopy: (312) 332-5345
-25-
<PAGE>
Commitment
$5,000,000 NBD BANK, as a Bank
By
Name:
Title:
Address:
Midwest Banking Division
611 Woodward Avenue
Detroit, Michigan 48226
Attention: Daniel J. Clarke, Jr.
Telephone: (313) 225-2058
Telecopy: (313) 225-3074
-26-
<PAGE>
Commitment
$6,000,000 SOCIETE GENERALE, as a Bank
By
Name:
Title:
By
Name:
Title:
Address:
181 West Madison Street
Suite 3400
Chicago, Illinois 60602
Attention: May I. Mallouh
Telephone: (312) 578-5166
Telecopy: (312) 578-5099
-27-
<PAGE>
Commitment
$5,000,000 THE FIRST NATIONAL BANK OF CHICAGO, as
a Bank
By__________________________
Name:
Title:
Address:
One First National Plaza
Mail Suite 0084
Chicago, Illinois 60670-0084
Attention: John F. Ide
Telephone: (312) 732-5103
Telecopy: (312) 732-5296
-28-
<PAGE>
