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EXHIBIT 99.1
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CONFORMED COPY
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AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF
JUNE 6, 2007
AMONG
JONES LANG LASALLE FINANCE B.V.,
THE GUARANTORS PARTY HERETO,
THE BANKS PARTY HERETO,
BANK OF MONTREAL,
AS ADMINISTRATIVE AGENT
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BMO CAPITAL MARKETS,
AS LEAD ARRANGER,
BANK OF AMERICA, N.A.
AND
LASALLE BANK NATIONAL ASSOCIATION,
AS CO-SYNDICATION AGENTS,
AND
US BANK NATIONAL ASSOCIATION,
AND
THE ROYAL BANK OF SCOTLAND PLC,
AS CO-DOCUMENTATION AGENTS
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<PAGE>
TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
SECTION HEADING PAGE
SECTION 1. THE REVOLVING CREDIT . . . . . . . . . . . . . 1
Section 1.1. Commitments. . . . . . . . . . . . . . . . . .
1
Section 1.2. The Swingline. . . . . . . . . . . . . . . . .
2
Section 1.3. Letters of Credit. . . . . . . . . . . . . . .
3
Section 1.4. Applicable Interest Rates. . . . . . . . . . .
6
Section 1.5. Minimum Borrowing Amounts. . . . . . . . . . .
7
Section 1.6. Manner of Borrowing Loans and
Designating Interest Rates Applicable
to Loans . . . . . . . . . . . . . . . . . . . 8
Section 1.7. Interest Periods . . . . . . . . . . . . . . .
10
Section 1.8. Maturity of Loans. . . . . . . . . . . . . . .
10
Section 1.9. Prepayments. . . . . . . . . . . . . . . . . .
11
Section 1.10. Default Rate . . . . . . . . . . . . . . . . .
11
Section 1.11. Noteless Agreement; Evidence of Indebtedness .
12
Section 1.12. Funding Indemnity. . . . . . . . . . . . . . .
13
Section 1.13. Commitment Terminations. . . . . . . . . . . .
13
Section 1.14. Substitution of Banks. . . . . . . . . . . . .
14
Section 1.15. Increase in Commitments. . . . . . . . . . . .
14
SECTION 2. FEES . . . . . . . . . . . . . . . . . . . . . 15
Section 2.1. Fees . . . . . . . . . . . . . . . . . . . . .
15
SECTION 3. PLACE AND APPLICATION OF PAYMENTS. . . . . . . 16
Section 3.1. Place and Application of Payments. . . . . . .
16
SECTION 4. DEFINITIONS; INTERPRETATION. . . . . . . . . . 16
Section 4.1. Definitions. . . . . . . . . . . . . . . . . .
16
Section 4.2. Interpretation . . . . . . . . . . . . . . . .
26
Section 4.3. Change in Accounting Principles. . . . . . . .
26
SECTION 5. REPRESENTATIONS AND WARRANTIES . . . . . . . . 27
Section 5.1. Corporate Organization and Authority . . . . .
27
Section 5.2. Subsidiaries . . . . . . . . . . . . . . . . .
27
Section 5.3. Corporate Authority and Validity
of Obligations . . . . . . . . . . . . . . . . 27
Section 5.4. Financial Statements . . . . . . . . . . . . .
28
Section 5.5. No Litigation; No Labor Controversies. . . . .
28
Section 5.6. Taxes. . . . . . . . . . . . . . . . . . . . .
28
Section 5.7. Approvals. . . . . . . . . . . . . . . . . . .
29
Section 5.8. ERISA. . . . . . . . . . . . . . . . . . . . .
29
Section 5.9. Government Regulation. . . . . . . . . . . . .
29
Section 5.10. Margin Stock . . . . . . . . . . . . . . . . .
29
Section 5.11. Licenses and Authorizations; Compliance
with Environmental and Health Laws . . . . . . 29
Section 5.12. Ownership of Property; Liens . . . . . . . . .
30
Section 5.13. No Burdensome Restrictions; Compliance
with Agreements. . . . . . . . . . . . . . . . 30
Section 5.14. Accuracy of Information. . . . . . . . . . . .
30
SECTION 6. CONDITIONS PRECEDENT . . . . . . . . . . . . . 30
Section 6.1. Initial Credit Event . . . . . . . . . . . . .
30
Section 6.2. All Credit Events. . . . . . . . . . . . . . .
31
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SECTION HEADING PAGE
SECTION 7. COVENANTS. . . . . . . . . . . . . . . . . . . 32
Section 7.1. Corporate Existence; Subsidiaries. . . . . . .
32
Section 7.2. Maintenance. . . . . . . . . . . . . . . . . .
32
Section 7.3. Taxes. . . . . . . . . . . . . . . . . . . . .
32
Section 7.4. ERISA. . . . . . . . . . . . . . . . . . . . .
33
Section 7.5. Insurance. . . . . . . . . . . . . . . . . . .
33
Section 7.6. Financial Reports and Other Information. . . .
33
Section 7.7. Bank Inspection Rights . . . . . . . . . . . .
34
Section 7.8. Conduct of Business. . . . . . . . . . . . . .
34
Section 7.9. Liens. . . . . . . . . . . . . . . . . . . . .
34
Section 7.10. Use of Proceeds; Regulation U. . . . . . . . .
35
Section 7.11. Sales and Leasebacks . . . . . . . . . . . . .
36
Section 7.12. Mergers, Consolidations and Sales of Assets. .
36
Section 7.13. Use of Property and Facilities;
Environmental and Health and Safety Laws . . . 37
Section 7.14. Investments, Acquisitions, Loans,
Advances and Guaranties. . . . . . . . . . . . 37
Section 7.15. Consolidated Net Worth . . . . . . . . . . . .
39
Section 7.16. Funded Debt to Adjusted EBITDA . . . . . . . .
40
Section 7.17. Interest Coverage Ratio. . . . . . . . . . . .
40
Section 7.18. Dividends and Other Shareholder Distributions.
40
Section 7.19. Indebtedness . . . . . . . . . . . . . . . . .
40
Section 7.20. Transactions with Affiliates . . . . . . . . .
40
Section 7.21. Compliance with Laws . . . . . . . . . . . . .
41
Section 7.22. Additional Guarantors. . . . . . . . . . . . .
41
SECTION 8. EVENTS OF DEFAULT AND REMEDIES . . . . . . . . 41
Section 8.1. Events of Default. . . . . . . . . . . . . . .
41
Section 8.2. Non-Bankruptcy Defaults. . . . . . . . . . . .
43
Section 8.3. Bankruptcy Defaults. . . . . . . . . . . . . .
43
Section 8.4. Collateral for Undrawn Letters of Credit . . .
43
Section 8.5. Notice of Default. . . . . . . . . . . . . . .
44
Section 8.6. Expenses . . . . . . . . . . . . . . . . . . .
44
SECTION 9. CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . 44
Section 9.1. Change of Law. . . . . . . . . . . . . . . . .
44
Section 9.2. Unavailability of Deposits or Inability
to Ascertain, or Inadequacy of, LIBOR. . . . . 44
Section 9.3. Increased Cost and Reduced Return. . . . . . .
45
Section 9.4. Lending Offices. . . . . . . . . . . . . . . .
46
Section 9.5. Discretion of Bank as to Manner of Funding . .
46
SECTION 10. THE ADMINISTRATIVE AGENT . . . . . . . . . . .
46
Section 10.1. Appointment and Authorization of
Administrative Agent . . . . . . . . . . . . . 46
Section 10.2. Administrative Agent and its Affiliates. . . .
47
Section 10.3. Action by Administrative Agent . . . . . . . .
47
Section 10.4. Consultation with Experts. . . . . . . . . . .
47
Section 10.5. Liability of Administrative Agent;
Credit Decision. . . . . . . . . . . . . . . . 47
Section 10.6. Indemnity. . . . . . . . . . . . . . . . . . .
48
Section 10.7. Resignation of Administrative Agent and
Successor Agent. . . . . . . . . . . . . . . . 48
Section 10.8. L/C Issuer and Swingline Bank. . . . . . . . .
49
Section 10.9. Designation of Additional Agents . . . . . . .
49
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<PAGE>
SECTION HEADING PAGE
SECTION 11. THE GUARANTEES . . . . . . . . . . . . . . . .
49
Section 11.1. The Guarantees . . . . . . . . . . . . . . . .
49
Section 11.2. Guarantee Unconditional. . . . . . . . . . . .
49
Section 11.3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances . . . . 50
Section 11.4. Waivers. . . . . . . . . . . . . . . . . . . .
50
Section 11.5. Limit on Recovery. . . . . . . . . . . . . . .
51
Section 11.6. Stay of Acceleration . . . . . . . . . . . . .
51
Section 11.7. Benefit to Guarantors. . . . . . . . . . . . .
51
Section 11.8. Guarantor Covenants. . . . . . . . . . . . . .
51
SECTION 12. MISCELLANEOUS. . . . . . . . . . . . . . . . .
52
Section 12.1. Payments Free of Withholding Taxes . . . . . .
52
Section 12.2. No Waiver of Rights. . . . . . . . . . . . . .
52
Section 12.3. Non-Business Day . . . . . . . . . . . . . . .
52
Section 12.4. Documentary Taxes. . . . . . . . . . . . . . .
52
Section 12.5. Survival of Representations. . . . . . . . . .
53
Section 12.6. Survival of Indemnities. . . . . . . . . . . .
53
Section 12.7. Sharing of Set-Off . . . . . . . . . . . . . .
53
Section 12.8. Notices. . . . . . . . . . . . . . . . . . . .
53
Section 12.9. Counterparts . . . . . . . . . . . . . . . . .
54
Section 12.10. Successors and Assigns . . . . . . . . . . . .
54
Section 12.11. Participants . . . . . . . . . . . . . . . . .
54
Section 12.12. Assignments. . . . . . . . . . . . . . . . . .
54
Section 12.13. Amendments . . . . . . . . . . . . . . . . . .
56
Section 12.14. Headings . . . . . . . . . . . . . . . . . . .
57
Section 12.15. Legal Fees, Other Costs and Indemnification. .
57
Section 12.16. Set Off. . . . . . . . . . . . . . . . . . . .
57
Section 12.17. Currency . . . . . . . . . . . . . . . . . . .
58
Section 12.18. Entire Agreement . . . . . . . . . . . . . . .
58
Section 12.19. Governing Law. . . . . . . . . . . . . . . . .
58
Section 12.20. Submission to Jurisdiction; Waiver
of Jury Trial. . . . . . . . . . . . . . . . . 58
Section 12.21. Limitation of Liability. . . . . . . . . . . .
59
Section 12.22. Confidentiality. . . . . . . . . . . . . . . .
59
Section 12.23. Severability of Provisions . . . . . . . . . .
59
Section 12.24. Excess Interest. . . . . . . . . . . . . . . .
59
Section 12.25. Construction . . . . . . . . . . . . . . . . .
60
Section 12.26. Bank's and L/C Issuer's Obligations Several. .
60
Section 12.27. USA Patriot Act. . . . . . . . . . . . . . . .
60
Section 12.28. Equalization of Loans and Commitments. . . . .
60
Section 12.29. Removal of Banks and Assignment of Interests .
61
Signature . . . . . . . . . . . . . . . . . . . . . . .S-1 -
S-17
EXHIBITS
A-1 - Form of Note
A-2 - Form of Swingline Note
B - Form of Compliance Certificate
C - Form of Subsidiary Guarantee Agreement
D - Commitment Amount Increase Request
E - Assignment and Acceptance
SCHEDULE 1 COMMITMENTS
SCHEDULE 1.3 EXISTING LETTERS OF CREDIT
SCHEDULE 5.2 GUARANTORS
SCHEDULE 7.14 EXISTING INVESTMENTS
iii
<PAGE>
AMENDED AND RESTATED
MULTICURRENCY CREDIT AGREEMENT
This Amended and Restated Multicurrency Credit Agreement, dated
as of
June 6, 2007, is among Jones Lang LaSalle Finance B.V., a
private company
with limited liability organized under the laws of The
Netherlands (the
"Borrower"), the Guarantors (as hereinafter defined) party
hereto, the
lenders from time to time party hereto (each a "Bank" and,
collectively,
the "Banks") Bank of Montreal, as Administrative Agent.
PRELIMINARY STATEMENT
Whereas, the Borrower, the guarantors party thereto, the
several
parties thereto as lenders, and Harris N.A., as Administrative
Agent,
previously entered into a Credit Agreement, dated as of March 1,
2006 (as
amended, the "Existing Credit Agreement") pursuant to which the
Banks have
made Loans (as defined in the Existing Credit Agreement) to the
Borrower
(as defined in the Existing Credit Agreement) and issued letters
of credit
for the account of the Borrower, on the terms and conditions set
forth
therein;
Whereas, the Borrower has requested that the Banks amend the
Existing
Credit Agreement to revise certain terms of the Existing Credit
Agreement,
and the Banks have agreed to do so on the terms and conditions
set forth
herein; and
Whereas, Harris N.A. has given notice of its intention to resign
as
Agent and the parties have agreed to substitute Bank of
Montreal, Chicago
Branch, for Harris N.A. as Administrative Agent and, in
connection
therewith, to replace Harris N.A. as a Bank with BMO Capital
Markets
Financing, Inc.
Whereas, the parties hereto have agreed to amend and restate
the
Existing Credit Agreement in its entirety for the sake of
clarity and
convenience;
Whereas, this Amended and Restated Credit Agreement constitutes
for
all purposes an amendment to the Existing Credit Agreement and
not a new or
substitute agreement;
Now, Therefore, in consideration of the mutual agreements
contained
herein, and the other good and valuable consideration, the
receipt and
sufficiency of which are hereby acknowledged, the parties hereto
hereby
agree as follows:
SECTION 1. THE REVOLVING CREDIT.
SECTION 1.1. COMMITMENTS. Subject to the terms and
conditions
hereof, each Bank severally agrees to make a loan or loans
(individually a
"Loan" and collectively "Loans") to the Borrower from time to
time on a
revolving basis in U.S. Dollars and Alternative Currencies in an
aggregate
outstanding Original Dollar Amount up to the amount of its
Commitment
subject to any increases or reductions thereof pursuant to the
terms
hereof, before the Termination Date. The sum of the (i)
aggregate Original
Dollar Amount of Loans, (ii) the aggregate Original Dollar
Amount of
Swingline Loans, and (iii) the aggregate U.S. Dollar Equivalent
of all L/C
Obligations at any time outstanding shall not exceed the
Commitments in
effect at such time. The sum of the aggregate Original Dollar
Amount of
all Loans denominated in an Alternative Currency other than
Euros or Pounds
Sterling at any time outstanding shall not exceed $100,000,000.
Each
Borrowing of Loans shall be made ratably from the Banks in
proportion to
their respective Percentages. As provided in Section 1.6(a)
hereof, the
Borrower may elect that each Borrowing of Loans denominated in
U.S. Dollars
be either Domestic Rate Loans or Eurocurrency Loans. All Loans
denominated
in an Alternative Currency shall be Eurocurrency Loans. Loans
may be
repaid and the principal amount thereof reborrowed before the
Termination
Date, subject to all the terms and conditions hereof.
1
<PAGE>
SECTION 1.2. THE SWINGLINE.
(a) SWINGLINE LOANS. Subject to all of the terms and
conditions
hereof, the Swingline Bank agrees to make loans in U.S. Dollars
to the
Borrower ("Swingline Loans"), which shall not in the aggregate
at any time
outstanding exceed the lesser of (i) the Swingline Commitment or
(ii) the
difference between (x) the Commitments in effect at such time
and (y) the
sum of the Original Dollar Amount of all Loans and the U.S.
Dollar
Equivalent of the L/C Obligations outstanding at the time of
computation.
The Swingline Commitment may be availed of by the Borrower from
time to
time and borrowings thereunder may be repaid and used again
during the
period ending on the day immediately preceding the Termination
Date.
(b) MINIMUM BORROWING AMOUNT. Each Swingline Loan shall be in
an
amount not less than $100,000.
(c) INTEREST ON SWINGLINE LOANS. Each Swingline Loan shall
bear
interest (computed on the basis of a year of 360 days and actual
days
elapsed) for the Interest Period selected therefor at the
Domestic Rate
PLUS the Applicable Margin for Domestic Rate Loans or at the
rate quoted by
the Administrative Agent to the Borrower which is the interest
rate
determined in the Swingline Bank's discretion at which the
Swingline Bank
would be willing to make such Swingline Loan available to the
Borrower for
such Interest Period (the rate so quoted for a given Interest
Period being
herein referred to as the "Quoted Rate"), PROVIDED that if any
Swingline
Loan is not paid when due (whether by lapse of time,
acceleration or
otherwise) such Swingline Loan shall bear interest whether
before or after
judgment, until payment in full thereof through the end of the
Interest
Period then applicable thereto at the rate set forth in Section
1.10
hereof. Interest on each Swingline Loan shall be due and payable
on the
last day of each Interest Period applicable thereto, and
interest after
maturity (whether by lapse of time, acceleration or otherwise)
shall be due
and payable upon demand.
(d) REQUESTS FOR SWINGLINE LOANS. The Borrower shall give
the
Administrative Agent prior notice (which may be written or oral)
no later
than 12:00 noon (Chicago time) on the date upon which the
Borrower requests
that any Swingline Loan be made, specifying in each case the
amount and
date of such Swingline Loan and the Interest Period selected
therefor. The
Administrative Agent shall promptly advise the Swingline Bank of
any such
notice received from the Borrower. Within thirty (30) minutes
after
receiving such notice, the Swingline Bank shall quote the Quoted
Rate for
such Interest Period. The Borrower acknowledges and agrees that
the
interest rate quote is given for immediate and irrevocable
acceptance, and
if the Borrower does not so immediately accept the Quoted Rate
for the full
amount requested by the Borrower for such Swingline Loan, the
Quoted Rate
shall be deemed immediately withdrawn and such Swingline Loan
shall be made
at the rate per annum equal to the Domestic Rate from time to
time in
effect PLUS the Applicable Margin for Domestic Rate Loans.
Subject to all
of the terms and conditions hereof, the proceeds of such
Swingline Loan
shall be made available to the Borrower on the date so requested
at the
Borrower's Designated Disbursement Account or as the Borrower,
the
Administrative Agent and the Swingline Bank may otherwise agree.
Anything
contained in the foregoing to the contrary notwithstanding, (i)
the
obligation of the Swingline Bank to make Swingline Loans shall
be subject
to all of the terms and conditions of this Agreement (provided
that the
Swingline Bank shall be entitled to assume that the conditions
precedent to
an advance of any Swingline Loan have been satisfied unless
notified to the
contrary by the Administrative Agent or the Required Banks) and
(ii) the
Swingline Bank shall not be obligated to make more than one
Swingline Loan
during any one day.
2
<PAGE>
(e) REFUNDING LOANS. In its sole and absolute discretion,
the
Swingline Bank may at any time, on behalf of the Borrower (which
hereby
irrevocably authorizes the Swingline Bank to act on its behalf
for such
purpose) and with notice to the Borrower and the Administrative
Agent,
request each Bank to make a Loan in an amount equal to such
Bank's
Percentage of the amount of the Swingline Loans outstanding on
the date
such notice is given. Borrowings of Loans under this Section
1.2(e) shall
initially constitute Domestic Rate Loans unless timely notice is
given
pursuant to Section 1.6 hereof. Unless an Event of Default
described in
Section 8.1(f) or 8.1(g) exists with respect to the Borrower,
regardless of
the existence of any other Event of Default, each Bank shall
make the
proceeds of its requested Loan available to the Administrative
Agent for
the account of the Swingline Bank, in immediately available
funds, at the
principal office of the Administrative Agent in Chicago,
Illinois, before
12:00 noon (Chicago time) on the Business Day following the day
such notice
is given. The proceeds of such Loans shall be immediately
applied to repay
the outstanding Swingline Loans. The Administrative Agent shall
promptly
remit the proceeds of such Borrowing to the Swingline Bank to
repay the
outstanding Swingline Loans.
(f) PARTICIPATIONS. If any Bank refuses or otherwise fails to
make
a Loan when requested by the Swingline Bank pursuant to Section
1.2(e)
above (because an Event of Default described in Section 8.1(f)
or 8.1(g)
exists with respect to the Borrower or otherwise), such Bank
will, by the
time and in the manner such Loan was to have been funded to the
Swingline
Bank, purchase from the Swingline Bank an undivided
participating interest
in the outstanding Swingline Loans in an amount equal to its
Percentage of
the aggregate principal amount of Swingline Loans that were to
have been
repaid with such Loans. Each Bank that so purchases a
participation in a
Swingline Loan shall thereafter be entitled to receive its
Percentage of
each payment of principal received on the Swingline Loan and of
interest
received thereon accruing from the date such Bank funded to
the
Administrative Agent its participation in such Swingline Loan.
The
obligation of the Banks to the Swingline Bank shall be absolute
and
unconditional and shall not be affected or impaired by any
Default or Event
of Default which may then be continuing hereunder.
(g) VOLUNTARY PREPAYMENT OF SWINGLINE LOANS. The Borrower may
not
voluntarily prepay any Swingline Loan bearing interest at the
Quoted Rate
before the last day of its Interest Period. The Borrower may
voluntarily
prepay any Swingline Loan bearing interest computed by reference
to the
Domestic Rate before the last day of its Interest Period at any
time upon
notice delivered to the Administrative Agent by the Borrower no
later than
12:00 noon (Chicago time) on the date of prepayment, such
prepayment to be
made by the payment of the principal amount to be prepaid and
accrued
interest thereon to the date fixed for prepayment.
SECTION 1.3. LETTERS OF CREDIT.
(a) GENERAL TERMS. Subject to the terms and conditions hereof,
as
part of the Revolving Credit the L/C Issuer shall issue standby
letters of
credit (each a "Letter of Credit") for the account of the
Borrower or for
the account of the Borrower and the Parent or one or more of
its
Subsidiaries in Euros, Pound Sterling, Japanese Yen or U.S.
Dollars in the
U.S. Dollar Equivalent of the aggregate undrawn face amount up
to the L/C
Commitment, PROVIDED that the U.S. Dollar Equivalent of the
aggregate L/C
Obligations at any time outstanding shall not exceed the
difference between
the Commitments in effect at such time and the aggregate
Original Dollar
Amount of Loans and Swingline Loans then outstanding.
Notwithstanding
anything herein to the contrary, those certain letters of credit
issued for
the account of the Borrower or the Parent by Harris N.A. under
the Existing
Credit Agreement and listed on Schedule 1.3 hereof (the
"Existing Letters
of Credit") shall each constitute a "Letter of Credit" herein
for all
purposes of this Agreement with the Borrower as the applicant
therefor, to
the same extent, and with the same force and effect as if the
Existing
Letters of Credit had been issued under this Agreement at the
request of
the Borrower. Each Letter of Credit shall be issued by the L/C
Issuer, but
each Bank shall be obligated to reimburse the L/C Issuer for its
Percentage
3
<PAGE>
of the amount of each drawing thereunder and, accordingly, the
undrawn face
amount of each Letter of Credit shall constitute usage of the
Commitment of
each Bank PRO RATA in accordance with each Bank's
Percentage.
(b) APPLICATIONS. At any time before the Termination Date, the
L/C
Issuer shall, at the request of the Borrower, issue one or more
Letters of
Credit, in a form satisfactory to the L/C Issuer, with
expiration dates no
later than the Termination Date, in an aggregate face amount as
set forth
above, upon the receipt of an application duly executed by the
Borrower
and, if such Letter of Credit is for the account of the Parent
or one of
its Subsidiaries, the Parent or such Subsidiary for the relevant
Letter of
Credit in the form customarily prescribed by the L/C Issuer for
a standby
letter of credit (each an "Application"). Notwithstanding
anything
contained in any Application to the contrary (i) the Borrower's
obligation
to pay fees in connection with each Letter of Credit shall be
as
exclusively set forth in Section 2.1(b) hereof, (ii) except
during the
continuance of an Event of Default, the L/C Issuer will not call
for the
funding by the Borrower of any amount under a Letter of Credit,
or any
other form of collateral security for the Borrower's obligations
in
connection with such Letter of Credit, before being presented
with a
drawing thereunder, and (iii) if the L/C Issuer is not timely
reimbursed
for the amount of any drawing under a Letter of Credit on the
date such
drawing is paid, the Borrower's obligation to reimburse the L/C
Issuer for
the amount of such drawing shall bear interest (which the
Borrower hereby
promises to pay) from and after the date such drawing is paid at
a rate per
annum (i) if such Letter of Credit is denominated in U.S.
Dollars, equal to
the sum of 2% PLUS the Domestic Rate from time to time in effect
PLUS the
Applicable Margin for Domestic Rate Loans and (ii) if such
Letter of Credit
is denominated in Euros, Japanese Yen or Pound Sterling, equal
to the rate
established pursuant to Section 1.10(b) for Eurocurrency Loans
denominated
in an Alternative Currency. The L/C Issuer agrees to issue
amendments to
the Letter(s) of Credit increasing the amount, or extending the
expiration
date, thereof at the request of the Borrower subject to the
conditions of
Section 6.2 and the other terms of this Section 1.3.
(c) THE REIMBURSEMENT OBLIGATIONS. Subject to Section 1.3(b)
hereof, the obligation of the Borrower to reimburse the L/C
Issuer for all
drawings under a Letter of Credit (a "Reimbursement Obligation")
shall be
governed by the Application related to such Letter of Credit,
except that
reimbursement of each drawing shall be made in immediately
available funds
(i) if such Letter of Credit is denominated in U.S. Dollars, at
the
Administrative Agent's principal office in Chicago, Illinois and
(ii) if
such Letter of Credit is denominated in Euros, Japanese Yen or
Pound
Sterling, to such local office as the Administrative Agent has
previously
specified, in each case by no later than 12:00 noon (local time)
on the
date when each drawing is paid or, if such drawing was paid
after 11:30
a.m. (local time), by the end of such day. If the Borrower does
not make
any such reimbursement payment on the date due and the
Participating Banks
fund their participations therein in the manner set forth in
Section 1.3(d)
below, then all payments thereafter received by the
Administrative Agent in
discharge of any of the relevant Reimbursement Obligations shall
be
distributed in accordance with Section 1.3(d) below.
(d) THE PARTICIPATING INTERESTS. Each Bank (other than the
Bank
then acting as L/C Issuer in issuing Letters of Credit)
severally agrees to
purchase from the L/C Issuer, and the L/C Issuer hereby agrees
to sell to
each such Bank (a "Participating Bank"), an undivided
percentage
participating interest (a "Participating Interest"), to the
extent of its
Percentage, in each Letter of Credit issued by, and each
Reimbursement
Obligation owed to, the L/C Issuer. Upon any failure by the
Borrower to
pay any Reimbursement Obligation at the time required on the
date due, as
set forth in Section 1.3(c) above, or if the L/C Issuer is
required at any
time to return to the Borrower or to a trustee, receiver,
liquidator,
custodian or other Person any portion of any payment of any
Reimbursement
Obligation, each Participating Bank shall, not later than the
Business Day
it receives a request from the L/C Issuer to such effect, if
such request
is received before 1:00 p.m. (Chicago time), or not later than
the
following Business Day, if such request is received after such
time, pay to
4
<PAGE>
the Administrative Agent for the account of the L/C Issuer an
amount equal
to its Percentage of such unpaid or recaptured Reimbursement
Obligation
together with interest on such amount accrued from the date the
related
payment was made by the L/C Issuer to the date of such payment
by such
Participating Bank at a rate per annum equal to (i) from the
date the
related payment was made by the L/C Issuer to the date two (2)
Business
Days after payment by such Participating Bank is due hereunder
(a) if such
Letter of Credit is denominated in U.S. Dollars, the Federal
Funds Rate for
each day and (b) if such Letter of Credit is denominated in
Euros, Japanese
Yen or Pound Sterling at the rate of interest per annum as
determined by
the L/C Issuer at which overnight or weekend deposits in the
relevant
currency for delivery of immediately available and freely
transferable
funds are offered by the L/C Issuer to major banks in the
interbank market
for each such day and (ii) from the date two (2) Business Days
after the
date such payment is due from such Participating Bank to the
date such
payment is made by such Participating Bank, (a) if such Letter
of Credit is
denominated in U.S. Dollars, the Domestic Rate in effect for
each such day
and (b) if such Letter of Credit is denominated in Euros,
Japanese Yen or
Pound Sterling, the rate established by Section 1.10(b) for
Eurocurrency
Loans denominated in such currency. Each such Participating Bank
shall
thereafter be entitled to receive its Percentage of each payment
received
in respect of the relevant Reimbursement Obligation and of
interest paid
thereon, with the L/C Issuer retaining its Percentage as a Bank
hereunder.
The several obligations of the Participating Banks to the L/C
Issuer
under this Section 1.3 shall be absolute, irrevocable and
unconditional
under any and all circumstances whatsoever (except, without
limiting the
Borrower's obligations under each Application, to the extent the
Borrower
is relieved from its obligation to reimburse the L/C Issuer for
a drawing
under a Letter of Credit because of the L/C Issuer's gross
negligence or
willful misconduct in determining that documents received under
the Letter
of Credit comply with the terms thereof) and shall not be
subject to any
set-off, counterclaim or defense to payment which any
Participating Bank
may have or have had against the Borrower, the L/C Issuer, any
other Bank
or any other Person whatsoever. Without limiting the generality
of the
foregoing, such obligations shall not be affected by any Default
or Event
of Default or by any reduction or termination of any Commitment
of any
Bank, and each payment by a Participating Bank under this
Section 1.3 shall
be made without any offset, abatement, withholding or reduction
whatsoever.
The Administrative Agent shall be entitled to offset amounts
received for
the account of a Bank under this Agreement against unpaid
amounts due from
such Bank to the L/C Issuer hereunder (whether as fundings
of
participations, indemnities or otherwise), but shall not be
entitled to
offset against amounts owed to the L/C Issuer by any Bank
arising outside
this Agreement.
(e) INDEMNIFICATION. The Participating Banks shall, to the
extent
of their respective Percentages, indemnify the L/C Issuer (to
the extent
not reimbursed by the Borrower) against any cost, expense
(including
reasonable counsel fees and disbursements), claim, demand,
action, loss or
liability (except such as result from the Administrative Agent's
gross
negligence or willful misconduct) that the L/C Issuer may suffer
or incur
in connection with any Letter of Credit. The obligations of
the
Participating Banks under this Section 1.3(e) and all other
parts of this
Section 1.3 shall survive termination of this Agreement and of
all other
L/C Documents.
5
<PAGE>
(f) REPLACEMENT OF THE L/C ISSUER. The L/C Issuer may be
replaced
at any time by written agreement among the Parent, the Borrower,
the
Administrative Agent, the replaced L/C Issuer and the successor
L/C Issuer.
The Administrative Agent shall notify the Banks of any such
replacement of
the L/C Issuer. At the time any such replacement shall become
effective,
the Borrower shall pay all unpaid fees accrued for the account
of the
replaced L/C Issuer. From and after the effective date of any
such
replacement (i) the successor L/C Issuer shall have all the
rights and
obligations of the L/C Issuer under this Agreement with respect
to Letters
of Credit to be issued thereafter and (ii) references herein to
the term
"L/C Issuer " shall be deemed to refer to such successor or to
any previous
L/C Issuer, or to such successor and all previous L/C Issuer s,
as the
context shall require. After the replacement of a L/C Issuer
hereunder,
the replaced L/C Issuer shall remain a party hereto and shall
continue to
have all the rights and obligations of a L/C Issuer under this
Agreement
with respect to Letters of Credit issued by it prior to such
replacement,
but shall not be required to issue additional Letters of
Credit.
SECTION 1.4. APPLICABLE INTEREST RATES.
(a) DOMESTIC RATE LOANS. Each Domestic Rate Loan made or
maintained by a Bank shall bear interest during each Interest
Period it is
outstanding (computed on the basis of a year of 365 or 366 days,
as
applicable, and actual days elapsed) on the unpaid principal
amount thereof
from the date such Loan is advanced, continued or created by
conversion
from a Eurocurrency Loan until maturity (whether by acceleration
or
otherwise) at a rate per annum equal to the sum of the
Applicable Margin
PLUS the Domestic Rate from time to time in effect, payable on
the last day
of its Interest Period and at maturity (whether by acceleration
or
otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced or otherwise established
by the Administrative Agent from time to time as its prime
commercial
rate, or equivalent for U.S. Dollar loans to borrowers located
in the
United States, as in effect on such day, with any change in
the
Domestic Rate resulting from a change in said prime commercial
rate
to be effective as of the date of the relevant change in said
prime
commercial rate (it being acknowledged and agreed that such rate
may
not be the Administrative Agent's best or lowest rate); and
(ii) the sum of (x) the rate determined by the
Administrative
Agent to be the average of the rates per annum (rounded upwards,
if
necessary, to the nearest one hundred-thousandth of a
percentage
point) at approximately 10:00 a.m. (Chicago time) (or as
soon
thereafter as is practicable) on such day (or, if such day is
not a
Business Day, on the immediately preceding Business Day) by two
or
more Federal Funds brokers selected by the Administrative Agent
for
sale to the Administrative Agent at face value of overnight
Federal
Funds in an amount comparable to the principal amount owed to
the
Banks for which such rate is being determined, PLUS (y) 1/2 of
1%
(0.50%).
(b) EUROCURRENCY LOANS. Each Eurocurrency Loan made or
maintained
by a Bank shall bear interest during each Interest Period it is
outstanding
(computed on the basis of a year of 360 days and actual days
elapsed except
for Eurocurrency Loans denominated in Pounds Sterling which
shall be
computed on the basis of a year of 365 days and actual days
elapsed) on the
unpaid principal amount thereof from the date such Loan is
advanced,
continued, or created by conversion from a Domestic Rate Loan
until
maturity (whether by acceleration or otherwise) at a rate per
annum equal
to the sum of the Applicable Margin PLUS the Adjusted LIBOR
applicable for
such Interest Period, payable on the last day of the Interest
Period and at
maturity (whether by acceleration or otherwise), and, if the
applicable
Interest Period is longer than three months, on each day
occurring every
three months after the commencement of such Interest Period.
6
<PAGE>
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans,
a
rate per annum determined in accordance with the following
formula:
Adjusted LIBOR = LIBOR
-----------------------------------
1 - Eurocurrency Reserve Percentage
"LIBOR" means, for an Interest Period for a Borrowing of
Eurocurrency
Loans, (a) the LIBOR Index Rate for such Interest Period, if
such rate is
available, and (b) if the LIBOR Index Rate cannot be determined,
the
average rate of interest per annum (rounded upwards, if
necessary, to the
nearest one hundred-thousandth of a percentage point) at which
deposits in
U.S. Dollars or the relevant Alternative Currency, as
appropriate, in
immediately available funds are offered to the Administrative
Agent at
11:00 a.m. (London, England time) two (2) Business Days before
the
beginning of such Interest Period by major banks in the
interbank
eurocurrency market for delivery on the first day of and for a
period equal
to such Interest Period in an amount equal or comparable to the
principal
amount of the Eurocurrency Loan scheduled to be made by the
Administrative
Agent as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per
annum
(rounded upwards, if necessary, to the next higher one
hundred-thousandth
of a percentage point) for deposits in U.S. Dollars or the
relevant
Alternative Currency, as appropriate, for a period equal to such
Interest
Period, which appears on the appropriate Reuters Page for such
currency, as
of 11:00 a.m. (London, England time) on the day two (2) Business
Days
before the commencement of such Interest Period.
"Reuters Page" means the page designated on the Reuters Service
(or
such other service as may be nominated by the British Bankers'
Association
as the information vendor for the purpose of displaying British
Bankers'
Association Interest Settlement Rates) for the applicable
currency.
"Eurocurrency Reserve Percentage" means, for any Borrowing
of
Eurocurrency Loans, the daily average for the applicable
Interest Period of
the maximum rate, expressed as a decimal, at which reserves
(including,
without limitation, any supplemental, marginal and emergency
reserves) are
imposed during such Interest Period by the Board of Governors of
the
Federal Reserve System (or any successor) on "eurocurrency
liabilities", as
defined in such Board's Regulation D (or in respect of any other
category
of liabilities that includes deposits by reference to which the
interest
rate on Eurocurrency Loans is determined or any category of
extensions of
credit or other assets that include loans by non-United States
offices of
any Bank to United States residents), subject to any amendments
of such
reserve requirement by such Board or its successor, taking into
account any
transitional adjustments thereto. For purposes of this
definition, the
Eurocurrency Loans shall be deemed to be "eurocurrency
liabilities" as
defined in Regulation D without benefit or credit for any
prorations,
exemptions or offsets under Regulation D.
(c) RATE DETERMINATIONS. The Administrative Agent shall
determine
each interest rate applicable to the Loans, and a reasonable
determination
thereof by the Administrative Agent shall be conclusive and
binding except
in the case of manifest error or willful misconduct. The
Original Dollar
Amount of each Eurocurrency Loan denominated in an Alternative
Currency
shall be determined or redetermined, as applicable, effective as
of the
first day of each Interest Period applicable to such Loan.
SECTION 1.5. MINIMUM BORROWING AMOUNTS. Each Borrowing of
Domestic
Rate Loans shall be in an amount not less than $1,000,000 and in
integral
multiples of $100,000. Each Borrowing of Eurocurrency Loans
shall be in an
amount not less than an Original Dollar Amount of $3,000,000 and
in
integral multiples of 100,000 units of the relevant currency as
would have
the Original Dollar Amount most closely approximating $100,000
or an
integral multiple thereof.
7
<PAGE>
SECTION 1.6. MANNER OF BORROWING LOANS AND DESIGNATING
INTEREST
RATES APPLICABLE TO LOANS.
(a) NOTICE TO THE ADMINISTRATIVE AGENT. The Borrower shall
give
notice to the Administrative Agent by no later than (i) 12:00
noon (Chicago
time) at least four (4) Business Days before the date on which
the Borrower
requests the Banks to advance a Borrowing of Eurocurrency Loans
denominated
in an Alternative Currency, (ii) 12:00 noon (Chicago time) at
least three
(3) Business Days before the date on which the Borrower requests
the Banks
to advance a Borrowing of Eurocurrency Loans denominated in U.S.
Dollars
and (iii) 12:00 noon (Chicago time) on the date on which the
Borrower
requests the Banks to advance a Borrowing of Domestic Rate
Loans. The
Loans included in each Borrowing shall bear interest initially
at the type
of rate specified in such notice of a new Borrowing. Thereafter,
the
Borrower may from time to time elect to change or continue the
type of
interest rate borne by each Borrowing or, subject to the minimum
amount
requirement for each outstanding Borrowing contained in Section
1.5 hereof,
a portion thereof, as follows: (i) if such Borrowing is of
Eurocurrency
Loans, on the last day of the Interest Period applicable
thereto, the
Borrower may continue part or all of such Borrowing as
Eurocurrency Loans
for an Interest Period or Interest Periods specified by the
Borrower or, if
such Eurocurrency Loan is denominated in U.S. Dollars, convert
part or all
of such Borrowing into Domestic Rate Loans, (ii) if such
Borrowing is of
Domestic Rate Loans, on any Business Day, the Borrower may
convert all or
part of such Borrowing into Eurocurrency Loans denominated in
U.S. Dollars
for an Interest Period or Interest Periods specified by the
Borrower. The
Borrower shall give all such notices requesting the advance,
continuation,
or conversion of a Borrowing to the Administrative Agent by
telephone or
telecopy (which notice shall be irrevocable once given and, if
by
telephone, shall be promptly confirmed in writing). Notices of
the
continuation of a Borrowing of Eurocurrency Loans denominated in
U.S.
Dollars for an additional Interest Period or of the conversion
of part or
all of a Borrowing of Eurocurrency Loans denominated in U.S.
Dollars into
Domestic Rate Loans or of Domestic Rate Loans into Eurocurrency
Loans must
be given by no later than 12:00 noon (Chicago time) at least
three (3)
Business Days before the date of the requested continuation or
conversion.
Notices of the continuation of a Borrowing of Eurocurrency
Loans
denominated in an Alternative Currency must be given no later
than 12:00
noon (Chicago time) at least four (4) Business Days before the
requested
continuation. All such notices concerning the advance,
continuation, or
conversion of a Borrowing shall specify the date of the
requested advance,
continuation or conversion of a Borrowing (which shall be a
Business Day),
the amount of the requested Borrowing to be advanced, continued,
or
converted, the type of Loans to comprise such new, continued or
converted
Borrowing and, if such Borrowing is to be comprised of
Eurocurrency Loans,
the currency and Interest Period applicable thereto. The
Borrower agrees
that the Administrative Agent may rely on any such telecopy
notice given by
any person it in good faith believes is an Authorized
Representative
without the necessity of independent investigation, and in the
event any
such notice by telephone conflicts with any written
confirmation, such
telephonic notice shall govern if the Administrative Agent has
acted in
reliance thereon.
(b) NOTICE TO THE BANKS. The Administrative Agent shall give
prompt telephonic or telecopy notice to each Bank (which notice
if by
telephone, shall be promptly confirmed in writing) of any notice
from the
Borrower received pursuant to Section 1.6(a) above. The
Administrative
Agent shall give notice to the Borrower and each Bank by like
means of the
interest rate applicable to each Borrowing of Eurocurrency Loans
and, if
such Borrowing is denominated in an Alternative Currency, shall
give notice
by such means to the Borrower and each Bank of the Original
Dollar Amount
thereof.
8
<PAGE>
(c) BORROWER'S FAILURE TO NOTIFY. Any outstanding Borrowing
of
Domestic Rate Loans shall, subject to Section 6.2 hereof,
automatically be
continued for an additional Interest Period on the last day of
its then
current Interest Period unless the Borrower has notified the
Administrative
Agent within the period required by Section 1.6(a) that it
intends to
convert such Borrowing into a Borrowing of Eurocurrency Loans or
notifies
the Administrative Agent within the period required by Section
1.9(a) that
it intends to prepay such Borrowing. If the Borrower fails to
give notice
pursuant to Section 1.6(a) above of the continuation or
conversion of any
outstanding principal amount of a Borrowing of Eurocurrency
Loans
denominated in U.S. Dollars before the last day of its then
current
Interest Period within the period required by Section 1.6(a) and
has not
notified the Administrative Agent within the period required
by
Section 1.9(a) that it intends to prepay such Borrowing, such
Borrowing
shall automatically be converted into a Borrowing of Domestic
Rate Loans,
subject to Section 6.2 hereof. If the Borrower fails to give
notice
pursuant to Section 1.6(a) above of the continuation of any
outstanding
principal amount of a Borrowing of Eurocurrency Loans
denominated in an
Alternative Currency before the last day of its then current
Interest
Period within the period required by Section 1.6(a) and has not
notified
the Administrative Agent within the period required by Section
1.9(a) that
it intends to prepay such Borrowing, such Borrowing shall
automatically be
continued as a Borrowing of Eurocurrency Loans in the same
Alternative
Currency with an Interest Period of one month, subject to
Section 6.2
hereof, including the application of Section 1.4 and of the
restrictions
contained in the definition of Interest Period.
(d) DISBURSEMENT OF LOANS. Not later than 11:00 a.m.
(Chicago
time) on the date of any requested advance of a new Borrowing
of
Eurocurrency Loans, and not later than 2:00 p.m. (Chicago time)
on the date
of any requested advance of a new Borrowing of Domestic Rate
Loans (other
than Domestic Rate Loans the proceeds of which are used to repay
Swingline
Loans), subject to Section 6 hereof, each Bank shall make
available its
Loan comprising part of such Borrowing in funds immediately
available at
the principal office of the Administrative Agent in Chicago,
Illinois,
except that if such Borrowing is denominated in an Alternative
Currency
each Bank shall, subject to Section 1.4(c) and Section 6, make
available
its Loan comprising part of such Borrowing at such office as
the
Administrative Agent has previously specified in a notice to
each Bank, in
such funds as are then customary for the settlement of
international
transactions in such currency and no later than such local time
as is
necessary for such funds to be received and transferred to the
Borrower for
same day value on the date of the Borrowing. The Administrative
Agent
shall make available to the Borrower Loans denominated in U.S.
Dollars at
the Administrative Agent's principal office in Chicago, Illinois
and Loans
denominated in Alternative Currencies at such office as the
Administrative
Agent has previously agreed to with the Borrower, in each case
in the type
of funds received by the Administrative Agent from the
Banks.
(e) ADMINISTRATIVE AGENT RELIANCE ON BANK FUNDING. Unless
the
Administrative Agent shall have been notified by a Bank before
the date or,
in the case of a Borrowing of Domestic Rate Loans prior to 1:00
p.m.
(Chicago time) on the date, on which such Bank is scheduled to
make payment
to the Administrative Agent of the proceeds of a Loan (which
notice shall
be effective upon receipt) that such Bank does not intend to
make such
payment, the Administrative Agent may assume that such Bank has
made such
payment when due and the Administrative Agent may in reliance
upon such
assumption (but shall not be required to) make available to the
Borrower
the proceeds of the Loan to be made by such Bank and, if any
Bank has not
in fact made such payment to the Administrative Agent, such Bank
shall, on
demand, pay to the Administrative Agent the amount made
available to the
Borrower attributable to such Bank together with interest
thereon in
respect of each day during the period commencing on the date
such amount
was made available to the Borrower and ending on (but excluding)
the date
such Bank pays such amount to the Administrative Agent at a rate
per annum
equal to (i) from the date the related advance was made by
the
Administrative Agent to the date two (2) Business Days after
payment by
such Bank is due hereunder, the Federal Funds Rate for each such
day or, in
9
<PAGE>
the case of a Loan denominated in an Alternative Currency, the
cost to the
Administrative Agent of funding the amount it advanced to fund
such Bank's
Loan, as determined by the Administrative Agent and (ii) from
the date two
(2) Business Days after the date such payment is due from such
Bank to the
date such payment is made by such Bank, the Domestic Rate in
effect for
each such day or, in the case of a Loan denominated in an
Alternative
Currency, the rate established by Section 1.10(b) for
Eurocurrency Loans
denominated in such currency. If such amount is not received
from such
Bank by the Administrative Agent immediately upon demand, the
Borrower
will, on demand, repay to the Administrative Agent the proceeds
of the Loan
attributable to such Bank with interest thereon at a rate per
annum equal
to the interest rate applicable to the relevant Loan, but
without such
payment being considered a payment or prepayment of a Loan
under
Section 1.12 hereof, so that the Borrower will have no liability
under such
Section with respect to such payment.
SECTION 1.7. INTEREST PERIODS. As provided in Section 1.2(d)
and
1.6(a) hereof, at the time of each request to advance, continue,
or create
by conversion a Borrowing of Eurocurrency Loans or Swingline
Loans, as
applicable, the Borrower shall select an Interest Period
applicable to such
Loans from among the available options. The term "Interest
Period" means
the period commencing on the date a Borrowing of Loans is
advanced,
continued, or created by conversion and ending: (a) in the case
of
Domestic Rate Loans, on the last day of the calendar quarter in
which such
Borrowing is advanced, continued, or created by conversion (or
on the last
day of the following quarter if such Loan is advanced, continued
or created
by conversion on the last day of a calendar quarter), (b) in the
case of
Eurocurrency Loans, 1, 2, 3, 6, or, if available to all the
Banks, 9 or 12
months thereafter, and (c) in the case of Swingline Loans, on
the date, as
the Borrower may select, one to five days thereafter; PROVIDED,
HOWEVER,
that:
(a) any Interest Period for a Borrowing of Loans consisting
of Domestic Rate Loans that otherwise would end after the
Termination
Date shall end on the Termination Date;
(b) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of
such
Interest Period shall be extended to the next succeeding
Business
Day, PROVIDED that, if such extension would cause the last day
of an
Interest Period for a Borrowing of Eurocurrency Loans to occur
in the
following calendar month, the last day of such Interest Period
shall
be the immediately preceding Business Day; and
(c) for purposes of determining an Interest Period for a
Borrowing of Eurocurrency Loans, a month means a period starting
on
one day in a calendar month and ending on the numerically
corresponding day in the next calendar month; PROVIDED, HOWEVER,
that
if there is no numerically corresponding day in the month in
which
such an Interest Period is to end or if such an Interest
Period
begins on the last Business Day of a calendar month, then
such
Interest Period shall end on the last Business Day of the
calendar
month in which such Interest Period is to end.
SECTION 1.8. MATURITY OF LOANS. Each Loan shall mature and
become
due and payable by the Borrower on the Termination Date. Each
Swingline
Loan shall mature and become due and payable on the earlier of
(i) the last
day of its Interest Period and (ii) the Termination Date.
10
<PAGE>
SECTION 1.9. PREPAYMENTS.
(a) OPTIONAL. The Borrower may prepay without premium or
penalty
and in whole or in part (but, if in part, then: (i) if such
Borrowing is
of Domestic Rate Loans, in an amount not less than $500,000,
(ii) if such
Borrowing is of Eurocurrency Loans denominated in U.S. Dollars,
in an
amount not less than $1,000,000, (iii) if such Borrowing is
denominated in
an Alternative Currency, an amount for which the U.S. Dollar
Equivalent is
not less than $1,000,000 and (iv) in an amount such that the
minimum amount
required for a Borrowing pursuant to Section 1.5 hereof
remains
outstanding) any Borrowing of Eurocurrency Loans upon one
Business Day's
prior notice to the Administrative Agent or, in the case of a
Borrowing of
Domestic Rate Loans, notice delivered to the Administrative
Agent no later
than 12:00 noon (Chicago time) on the date of prepayment, such
prepayment
to be made by the payment of the principal amount to be prepaid
and, in the
case of a prepayment of a Eurocurrency Loan, accrued interest
thereon to
the date fixed for prepayment; PROVIDED that in the case of any
such
prepayment of Eurocurrency Loans, such prepayment shall be
accompanied by
amounts owing under Section 1.12 hereof; PROVIDED further that
any amounts
not repaid on the date fixed for prepayment shall be converted
(subject to
Sections 1.5 and 6.2 hereof) into a Borrowing of Domestic Rate
Loans. The
Administrative Agent will promptly advise each Bank of any such
prepayment
notice it receives from the Borrower.
(b) MANDATORY.
(i) If on any March 31, June 30, September 30 or December 31
occurring after the date hereof the sum of (a) the U.S. Dollar
Equivalent
of all outstanding Loans hereunder, (b) the aggregate Original
Dollar
Amount of all outstanding Swingline Loans hereunder, and (c) the
U.S.
Dollar Equivalent of the L/C Obligations exceeds the Commitments
as then in
effect, the Borrower shall immediately prepay Loans and, if
necessary,
prefund L/C Obligations in an aggregate amount such that after
giving
effect thereto the sum of (A) the U.S. Dollar Equivalent of all
outstanding
Loans hereunder, (B) the aggregate Original Dollar Amount of
all
outstanding Swingline Loans hereunder, and (C) the U.S. Dollar
Equivalent
of the outstanding L/C Obligations is less than or equal to the
Commitments
as then in effect.
(ii) The Borrower shall, on each date the Commitments are
reduced
pursuant to Section 1.13 hereof, prepay the Loans and, if
necessary,
prefund the L/C Obligations by the amount, if any, necessary to
reduce the
sum of the aggregate Original Dollar Amount of Loans and U.S.
Dollar
Equivalent of L/C Obligations then outstanding to the amount to
which the
Commitments have been so reduced.
SECTION 1.10. DEFAULT RATE. Notwithstanding anything to the
contrary contained herein, while any Event of Default exists or
after
acceleration, the Borrower shall pay interest (after as well as
before
entry of judgment thereon to the extent permitted by law) on the
principal
amount of all Loans, Swingline Loans and Reimbursement
Obligations, and
letter of credit fees from and including the date provided in
this Section
1.10 until paid at a rate per annum equal to:
(a) for any Domestic Rate Loan, the sum of two percent (2%)
PLUS the Domestic Rate from time to time in effect PLUS the
Applicable Margin for Domestic Rate Loans;
(b) for any Eurocurrency Loan, the sum of two percent (2%)
PLUS the rate of interest in effect thereon at the time of
such
default until the end of the Interest Period applicable thereto
and,
thereafter, if such Loan is denominated in U.S. Dollars, at a
rate
per annum equal to the sum of two percent (2%) PLUS the Domestic
Rate
from time to time in effect PLUS the Applicable Margin for
Domestic
Rate Loans or, if such Loan is denominated in an Alternative
Currency, at a rate per annum equal to the sum of the
Eurocurrency
Margin, PLUS two percent (2%) PLUS the rate of interest per
annum as
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determined by the Administrative Agent (rounded upwards, if
necessary, to the next higher one hundred-thousandth of a
percentage
point) at which overnight or weekend deposits (or, if such
amount due
remains unpaid more than three Business Days, then for such
other
period of time not longer than one month as the Administrative
Agent
may elect in its absolute discretion) of the relevant
Alternative
Currency for delivery in immediately available and freely
transferable funds would be offered by the Administrative Agent
to
major banks in the interbank market upon request of such major
banks
for the applicable period as determined above and in an
amount
comparable to the unpaid principal amount of any such
Eurocurrency
Loan (or, if the Administrative Agent is not placing deposits in
such
currency in the interbank market, then the Administrative
Agent's
cost of funds in such currency for such period);
(c) for any Swingline Loan, the sum of 2% PLUS the rate of
interest in effect thereon at the time of such default until the
end
of the Interest Period applicable thereto and, thereafter, at a
rate
per annum equal to 2% PLUS the Applicable Margin for Domestic
Rate
Loans PLUS the Domestic Rate from time to time in effect;
(d) for any Reimbursement Obligation, the sum of 2.0% PLUS
the amounts due under Section 1.3 with respect to such
Reimbursement
Obligation; and
(e) for any Letter of Credit, the sum of 2.0% PLUS the
letter
of credit fee due under Section 2.1 with respect to such Letter
of
Credit.
PROVIDED, HOWEVER, that in the absence of acceleration, any
adjustments
pursuant to this Section shall be made at the election of
the
Administrative Agent, acting at the request or with the consent
of the
Required Banks, with written notice to the Borrower. While any
Event of
Default exists or after acceleration, interest shall be paid on
demand of
the Administrative Agent at the request or with the consent of
the Required
Banks.
SECTION 1.11. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS.
(a) Each Bank shall maintain in accordance with its usual
practice
an account or accounts evidencing the indebtedness of the
Borrower to such
Bank resulting from each Loan made by such Bank from time to
time,
including the amounts of principal and interest payable and paid
to such
Bank from time to time hereunder.
(b) The Administrative Agent shall also maintain accounts in
which
it will record (i) the amount of each Loan made hereunder, the
type thereof
and the Interest Period with respect thereto, (ii) the amount of
any
principal or interest due and payable or to become due and
payable from the
Borrower to each Bank hereunder and (c) the amount of any sum
received by
the Administrative Agent hereunder from the Borrower and each
Bank's share
thereof.
(c) The entries maintained in the accounts maintained pursuant
to
paragraphs (a) and (b) above shall be PRIMA FACIE evidence of
the existence
and amounts of the Obligations therein recorded; PROVIDED,
HOWEVER, that
the failure of the Administrative Agent or any Bank to maintain
such
accounts or any error therein shall not in any manner affect the
obligation
of the Borrower to repay the Obligations in accordance with
their terms.
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(d) Any Bank may request that its Loans or Swingline Loans
be
evidenced by a Note. In such event, the Borrower shall prepare,
execute
and deliver to such Bank a Note or Notes payable to the order of
such Bank
in a form supplied by the Administrative Agent. Thereafter, the
Loans
evidenced by such Note or Notes and interest thereon shall at
all times
(including after any assignment pursuant to Section 12.12) be
represented
by one or more Notes payable to the order of the payee named
therein or any
assignee pursuant to Section 12.12, except to the extent that
any such Bank
or assignee subsequently returns any such Note for cancellation
and
requests that such Loans once again be evidenced as described
in
subsections (a) and (b) above.
SECTION 1.12. FUNDING INDEMNITY. If any Bank shall incur any
loss,
cost or expense (including, without limitation, any loss of
profit, and any
loss, cost or expense incurred by reason of the liquidation or
re-
employment of deposits or other funds acquired by such Bank to
fund or
maintain any Eurocurrency Loan or Swingline Loan or the
relending or
reinvesting of such deposits or amounts paid or prepaid to such
Bank) as a
result of:
(a) any payment, prepayment or conversion of a
Eurocurrency Loan or Swingline Loan on a date other than the
last day of its Interest Period,
(b) any failure (because of a failure to meet the
conditions of Section 6 or otherwise) by the Borrower to
borrow
or continue a Eurocurrency Loan or Swingline Loan, or to
convert a Domestic Rate Loan into a Eurocurrency Loan, on
the
date specified in a notice given pursuant to Section 1.6(a)
or
established pursuant to Section 1.6(c) hereof,
(c) any failure by the Borrower to make any payment of
principal on any Eurocurrency Loan or Swingline Loan when
due
(whether by acceleration or otherwise), or
(d) any acceleration of the maturity of a Eurocurrency
Loan or Swingline Loan as a result of the occurrence of any
Event of Default hereunder,
then, upon the demand of such Bank, the Borrower shall pay to
such Bank
such amount as will reimburse such Bank for such loss, cost or
expense. If
any Bank makes such a claim for compensation, it shall provide
to the
Borrower, with a copy to the Administrative Agent, a certificate
executed
by an officer of such Bank setting forth the amount of such
loss, cost or
expense in reasonable detail (including an explanation of the
basis for and
the computation of such loss, cost or expense) and the amounts
shown on
such certificate if reasonably calculated shall be conclusive
absent
manifest error.
SECTION 1.13. COMMITMENT TERMINATIONS.
(a) The Borrower shall have the right at any time and from time
to
time, upon five (5) Business Days' prior written notice to
the
Administrative Agent, to terminate the Commitments without
premium or
penalty, in whole or in part, any partial termination to be in
an amount
not less than $5,000,000, PROVIDED that the Commitments may not
be reduced
to an amount less than the sum of the Original Dollar Amount of
all Loans
and Swingline Loans and the U.S. Dollar Equivalent of all L/C
Obligations
then outstanding. The Borrower shall have the right at any time
and from
time to time, by notice to the Administrative Agent, to reduce
or terminate
the L/C Commitment without premium or penalty, in whole or in
part;
PROVIDED THAT the L/C Commitment may not be reduced to an amount
less than
the U.S. Dollar Equivalent of all L/C Obligations then
outstanding. The
Borrower shall have the right at any time and from time to time,
by notice
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<PAGE>
to the Administrative Agent, to reduce or terminate the
Swingline
Commitment without premium or penalty, in whole or in part;
PROVIDED THAT
the Swingline Commitment may not be reduced to an amount less
than the
aggregate principal amount of the Swingline Loans then
outstanding. Any
such termination of the L/C Commitment or the Swingline
Commitment shall
not reduce the Commitments unless the Borrower elects to do so
in the
manner provided above.
(b) The Administrative Agent shall give prompt notice to each
Bank
pursuant to this Section 1.13 of any termination of Commitments.
Any such
termination of Commitments (i) shall be allocated ratably among
the Banks
in proportion to their respective Percentage and (ii) may not
be
reinstated. Any termination of the Commitments to an aggregate
amount less
than the L/C Commitment then in effect shall reduce the L/C
Commitment to
an amount equal to the Commitments. Any termination of the
Commitments to
an aggregate amount less than the Swingline Commitment then in
effect shall
reduce the Swingline Commitment to an amount equal to the
Commitments.
SECTION 1.14. SUBSTITUTION OF BANKS. In the event (a) the
Borrower
receives a claim from any Bank for compensation under Section
9.3 or 12.1
hereof, (b) the Borrower receives notice from any Bank of any
illegality
pursuant to Section 10.1 hereof, (c) any Bank is in default in
any material
respect with respect to its obligations under the Credit
Documents, or
(d) a Bank fails to consent to an amendment or waiver requested
under
Section 12.13 hereof at a time when the Required Banks have
approved such
amendment or waiver (any such Bank referred to in clause (a),
(b), (c), or
(d) above being hereinafter referred to as an "Affected Bank"),
the
Borrower may, in addition to any other rights the Borrower may
have
hereunder or under applicable law, require, at its expense, any
such
Affected Bank to assign, at par PLUS accrued interest and fees,
without
recourse, all of its interest, rights, and obligations hereunder
(including
all of its Commitment and the Loans and participation interests
in Letters
of Credit and Swingline Loans and other amounts at any time
owing to it
hereunder and the other Credit Documents) to a commercial bank
or other
financial institution specified by the Borrower, PROVIDED that
(i) such
assignment shall not conflict with or violate any law, rule or
regulation
or order of any court or other governmental authority, (ii) the
Borrower
shall have received the written consent of the Administrative
Agent, which
consent shall not be unreasonably withheld or delayed, to such
assignment,
(iii) the Borrower shall have paid to the Affected Bank all
monies
(together with amounts due such Affected Bank under Section 1.12
hereof as
if the Loans owing to it were prepaid rather than assigned)
other than such
principal owing to it hereunder, and (iv) the assignment is
entered into in
accordance with the other requirements of Section 12.12 hereof
(provided
any assignment fees and reimbursable expenses due thereunder
shall be paid
by the Borrower).
SECTION 1.15. INCREASE IN COMMITMENTS. The Borrower may, on
any
Business Day prior to the Termination Date, with the written
consent of the
Administrative Agent, L/C Issuer and Swingline Bank (which
consents shall
not be unreasonably withheld or delayed), increase the aggregate
amount of
the Commitments by delivering a Commitment Amount Increase
Request
substantially in the form attached hereto as Exhibit D or in
such other
form acceptable to the Administrative Agent at least five (5)
Business Days
prior to the desired effective date of such increase (the
"Commitment
Amount Increase") identifying an additional Bank (or additional
Commitments
for existing Bank(s)) and the amount of its Commitment (or
additional
amount of its Commitment(s)); PROVIDED, HOWEVER, that (i) any
increase of
the aggregate amount of the Commitments to an amount in excess
of
$650,000,000 will require the approval of the Required Banks,
(ii) any
increase of the aggregate amount of the Commitments shall be in
an amount
not less than $25,000,000, (iii) no Default or Event of Default
shall have
occurred and be continuing at the time of the request or the
effective
date of the Commitment Amount Increase, (iv) all representations
and
warranties contained in Section 6 hereof shall be true and
correct at the
time of such request and on the effective date of such
Commitment Amount
Increase, and (v) prior to the effectiveness of any Commitment
Amount
Increase, the Administrative Agent shall have received a copy,
certified by
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the secretary or assistant secretary of the Parent, of
resolutions of the
Parent's board of directors authorizing the amount of such
Commitment
Amount Increase. The effective date of the Commitment Amount
Increase
shall be agreed upon by the Borrower and the Administrative
Agent. Upon
the effectiveness thereof, the new Bank(s) (or, if applicable,
existing
Bank(s)) shall advance Loans in an amount sufficient such that
after giving
effect to its Loans each Bank shall have outstanding its
Percentage of
Loans. It shall be a condition to such effectiveness that (i) if
any
Eurocurrency Loans are outstanding on the date of such
effectiveness, such
Eurocurrency Loans shall be deemed to be prepaid on such date
and the
Borrower shall pay any amounts owing to the Banks pursuant to
Section 1.12
hereof and (ii) the Borrower shall not have terminated any
portion of the
Commitments pursuant to Section 1.13 hereof. The Borrower agrees
to pay
any reasonable expenses of the Administrative Agent relating to
any
Commitment Amount Increase. Promptly upon the effectiveness of
any
Commitment Amount Increase, the Borrower, if requested by any
new Bank,
shall execute and deliver new Notes to each requesting Bank.
Notwithstanding anything herein to the contrary, no Bank shall
have any
obligation to increase its Commitment and no Bank's Commitment
shall be
increased without its consent thereto, and each Bank may at its
option,
unconditionally and without cause, decline to increase its
Commitment.
SECTION 2. FEES.
SECTION 2.1. FEES.
(a) FACILITY FEE. For the period from the Effective Date to
and
including the Termination Date, the Borrower shall pay to
the
Administrative Agent for the ratable account of the Banks in
accordance
with their Percentages a facility fee (the "Facility Fee") on
the average
daily Commitments at a rate per annum equal to the applicable
Facility Fee
in the definition of Applicable Margin; PROVIDED that if any
Bank continues
to have outstanding Loans, Swingline Loans or L/C Obligations
(including
participations therein) after its Commitment terminates, then
the Facility
Fee shall continue to accrue on the daily amount of such Bank's
outstanding
Loans, Swingline Loans and L/C Obligations (including
participations
therein). Accrued Facility Fees shall be due and payable in
arrears on
June 30, 2007, on the last day of each calendar quarter
thereafter and on
the Termination Date, unless the Commitments are terminated in
whole on an
earlier date, in which event the fee for the period to but not
including
the date of such termination shall be paid in whole on the date
of such
termination; PROVIDED that any Facility Fee accruing after the
date the
Commitments terminate shall be payable on demand.
(b) LETTER OF CREDIT FEES. On the date of issuance or
extension,
or increase in the amount, of any Letter of Credit pursuant to
Section 1.3
hereof, the Borrower shall pay to the Administrative Agent an
issuance fee
equal to 0.125% of the face amount of (or of the increase in the
face
amount of) such Letter of Credit. Quarterly in arrears, on the
last day of
each calendar quarter, commencing on June 30, 2007, the Borrower
shall pay
to the Administrative Agent, for the ratable benefit of the
Banks in
accordance with their Percentages, a letter of credit fee at a
rate per
annum equal to the Applicable Margin for Eurocurrency Loans in
effect
during each day of such quarter applied to the daily average
U.S. Dollar
Equivalent of the face amount of Letters of Credit outstanding
during such
quarter.
(c) ADMINISTRATIVE AGENT FEES. The Borrower shall pay to the
Administrative Agent the fees agreed to between the
Administrative Agent
and the Parent in writing from time to time.
(d) FEE CALCULATIONS. All fees payable under Section 2.1(a)
and
(b) shall be computed on the basis of a year of 365 or 366 days,
as
applicable, for the actual number of days elapsed.
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SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
SECTION 3.1. PLACE AND APPLICATION OF PAYMENTS. All payments
of
principal of and interest on the Loans and the Reimbursement
Obligations,
and of all other amounts payable by the Borrower under this
Agreement,
shall be made by the Borrower to the Administrative Agent by no
later than
12:00 Noon (Chicago time) on the due date thereof at the
principal office
of the Administrative Agent in Chicago, Illinois (or such other
location in
the State of Illinois as the Administrative Agent may designate
to the
Borrower) or, if such payment is to be made in an Alternative
Currency, no
later than 12:00 noon local time at the place of payment to such
office as
the Administrative Agent has previously specified in a notice to
the
Borrower for the benefit of the Person or Persons entitled
thereto. Any
payments received after such time shall be deemed to have been
received by
the Administrative Agent on the next Business Day. All such
payments shall
be made (i) in U.S. Dollars, in immediately available funds at
the place of
payment, or (ii) in the case of amounts payable hereunder in an
Alternative
Currency, in such Alternative Currency in such funds then
customary for the
settlement of international transactions in such currency, in
each case
without setoff or counterclaim. The Administrative Agent will
promptly
thereafter cause to be distributed like funds relating to the
payment of
principal or interest on Loans and on Reimbursement Obligations
in which
the Banks have purchased Participating Interests or facility
fees ratably
to the Banks and like funds relating to the payment of any other
amount
payable to any Person to such Person, in each case to be applied
in
accordance with the terms of this Agreement. If the
Administrative Agent
causes amounts to be distributed to the Banks in reliance upon
the
assumption that the Borrower will make a scheduled payment and
such
scheduled payment is not so made, each Bank shall, on demand,
repay to the
Administrative Agent the amount distributed to such Bank
together with
interest thereon in respect of each day during the period
commencing on the
date such amount was distributed to such Bank and ending on (but
excluding)
the date such Bank repays such amount to the Administrative
Agent, at a
rate per annum equal to: (i) from the date the distribution was
made to
the date two (2) Business Days after payment by such Bank is due
hereunder,
(x) if such scheduled payment was to be made in U.S. Dollars,
the Federal
Funds Rate for each such day and (y) if such scheduled payment
was to be
made in an Alternative Currency, the rate established by Section
1.10(b)
hereof for Eurocurrency Loans denominated in such currency and
(ii) from
the date two (2) Business Days after the date such payment is
due from such
Bank to the date such payment is made by such Bank, (x) if such
scheduled
payment was to be made in U.S. Dollars, the Base Rate in effect
for each
such day and (y) if such scheduled payment was to be made in an
Alternative
Currency, the rate per annum established by Section 1.10(b)
hereof for
Eurocurrency Loans denominated in such currency.
SECTION 4. DEFINITIONS; INTERPRETATION.
SECTION 4.1. DEFINITIONS. The following terms when used herein
have
the following meanings:
"Account" is defined in Section 8.4(b) hereof.
"Acquisition" means any transaction, or any series of
related
transactions, consummated after the Effective Date, by which the
Parent or
any of its Subsidiaries (i) acquires any going business or all
or
substantially all of the assets of any firm, corporation or
division
thereof, whether through purchase of assets, merger or
otherwise,
(ii) directly or indirectly acquires (in one transaction or as
the most
recent transaction in a series of transactions) at least a
majority (in
number of votes) of the securities of a corporation which have
ordinary
voting power for the election of directors (other than
securities having
such power only by reason of the happening of a contingency) or
at least a
majority of the partnership interests of any partnership or
(iii) merges,
consolidates or otherwise combines with another Person (other
than a Person
that is a Subsidiary or the Parent) PROVIDED that the Parent or
the
Subsidiary is the surviving entity.
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"Act" is defined in Section 12.27 hereof.
"Adjusted EBIT" means, for any period, Consolidated Net Income
for
such period PLUS all amounts deducted in arriving at such
Consolidated Net
Income for such period for (i) Interest Expense, (ii) federal,
state and
local income tax expense, (iii) all non-cash contributions or
accruals to
or with respect to deferred profit sharing or compensation, and
(iv)
Permitted Adjustments; PROVIDED that any amounts added to
Consolidated Net
Income pursuant to clause (iii) above for any period shall be
deducted from
Consolidated Net Income for the period, if ever, in which such
amounts are
paid in cash by the Parent or any of its Subsidiaries.
"Adjusted EBITDA" means, for any period, Consolidated Net Income
for
such period PLUS all amounts deducted in arriving at such
Consolidated Net
Income for such period for (i) Interest Expense, (ii) federal,
state and
local income tax expense, (iii) all amounts properly charged
for
depreciation of fixed assets and amortization of intangible
assets on the
books of the Parent and its Restricted Subsidiaries, (iv) all
non-cash
contributions or accruals to or with respect to deferred profit
sharing or
compensation, and (v) Permitted Adjustments; PROVIDED that any
amounts
added to Consolidated Net Income pursuant to clause (iv) above
for any
period shall be deducted from Consolidated Net Income for the
period, if
ever, in which such amounts are paid in cash by the Parent or
any of its
Subsidiaries.
"Adjusted LIBOR" is defined in Section 1.4(b) hereof.
"Administrative Agent" means Bank of Montreal and any
successor
pursuant to Section 10.7 hereof.
"Administrative Questionnaire" means an administrative
questionnaire
in a form supplied by the Administrative Agent.
"Affected Bank" is defined in Section 1.14 hereof.
"Affiliate" means, as to any Person, any other Person which
directly
or indirectly controls, or is under common control with, or is
controlled
by, such Person. As used in this definition, "control"
(including, with
their correlative meanings, "controlled by" and "under common
control
with") means possession, directly or indirectly, of power to
direct or
cause the direction of management or policies of a Person
(whether through
ownership of securities or partnership or other ownership
interests, by
contract or otherwise), PROVIDED that, in any event for purposes
of this
definition: (i) any Person which owns directly or indirectly 5%
or more of
the securities having ordinary voting power for the election of
directors
or other governing body of a corporation or 5% or more of the
partnership
or other ownership interests of any other Person (other than as
a limited
partner of such other Person) will be deemed to control such
corporation or
other Person; and (ii) each director and executive officer of
the Parent or
any Subsidiary shall be deemed an Affiliate of the Parent and
each
Subsidiary.
"Alternative Currency" means any of Australian Dollars,
Canadian
Dollars, Euros, Hong Kong Dollars, Japanese Yen, New Zealand
Dollars, Pound
Sterling, Singapore Dollars, and Swiss Francs, and any other
currency
approved by all the Banks, in each case for so long as such
currency is
readily available to all the Banks and is freely transferable
and freely
convertible to U.S. Dollars and the Reuters Monitor Money Rates
Service (or
any successor thereto) reports a LIBOR for such currency for
interest
periods of one, two, three and six calendar months; PROVIDED
THAT if any
Bank provides written notice to the Borrower (with a copy to
the
Administrative Agent) that any currency control or other
exchange
regulations are imposed in the country in which any such
Alternative
Currency is issued and that in the reasonable opinion of such
Bank funding
a Loan in such currency is impractical, then such currency shall
cease to
be an Alternative Currency hereunder until such time as all the
Banks
reinstate such country's currency as an Alternative
Currency.
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"Applicable Margin" means, on any date for any Domestic Rate
Loan,
Eurocurrency Loan, Reimbursement Obligations and Facility Fees
the rate per
annum set forth below, as in effect on such date as determined
pursuant to
the provisions of the definition of Pricing Date:
DOMESTIC
RATE LOANS AND
EUROCURRENCY REIMBURSEMENT
LEVEL LOANS OBLIGATIONS FACILITY FEE
Level I 0.375% 0% 0.100%
Level II 0.500% 0% 0.125%
Level III 0.650% 0% 0.150%
; PROVIDED that from the Closing Date until the first Pricing
Date the
Borrower shall be in Level I.
"Application" is defined in Section 1.3(b) hereof.
"Approved Fund" means any Fund that is administered or managed
by (a)
a Bank, (b) an Affiliate of a Bank or (c) an entity or an
Affiliate of an
entity that administers or manages a Bank.
"Assignment and Acceptance" means an assignment and
acceptance
entered into by a Bank and an Eligible Assignee (with the
consent of any
party whose consent is required by Section 12.12 hereof), and
accepted by
the Administrative Agent, in substantially the form of Exhibit E
or any
other form approved by the Administrative Agent.
"Authorized Representative" means those persons shown on the
list of
officers provided by the Borrower pursuant to Section 6.1(g)
hereof, or on
any updated such list provided by the Parent to the
Administrative Agent,
or any further or different officer of the Borrower so named by
any
Authorized Representative of the Parent in a written notice to
the
Administrative Agent.
"Bank" is defined in the introductory paragraph of this
Agreement
and, unless the context otherwise requires, includes the
Swingline Bank.
"Borrower" is defined in the introductory paragraph of this
Agreement.
"Borrowing" means the total of Loans and Swingline Loans, as
applicable, of a single type advanced, continued for an
additional Interest
Period, or converted from a different type into such type by the
Banks on a
single date and for a single Interest Period. Borrowings of
Loans are made
and maintained ratably from each of the Banks according to
their
Percentages. Borrowings of Swingline Loans are made by the
Swingline Bank
in accordance with the procedures set forth in Section 1.2
hereof. A
Borrowing is "advanced" on the day Banks advance funds
comprising such
Borrowing to the Borrower, is "continued" on the day a new
Interest Period
for the same type of Loans commences for such Borrowing, and is
"converted"
on the day such Borrowing is changed from one type of Loan to
the other,
all as requested by the Borrower pursuant to Section 1.6(a).
"Business Day" means any day other than a Saturday or Sunday on
which
Banks are not authorized or required to close in Chicago,
Illinois and, if
the applicable Business Day relates to the borrowing or payment
of a
Eurocurrency Loan or a Letter of Credit denominated in an
Alternative
Currency, on which banks are dealing in U.S. Dollar deposits or
the
relevant Alternative Currency in the interbank market in London,
England
and, if the applicable Business Day relates to the borrowing or
payment of
a Eurocurrency Loan denominated in an Alternative Currency, on
which banks
and foreign exchange markets are open for business in the city
where
disbursements of or payments on such Loan are to be made and, if
such
Alternative Currency is the Euro or any national currency of a
nation that
is a member of the European Economic and Monetary Union, which
is a TARGET
Settlement Day.
18
<PAGE>
"Capital Lease" means at any date any lease of Property which,
in
accordance with GAAP, would be required to be capitalized on the
balance
sheet of the lessee.
"Capitalized Lease Obligations" means, for any Person, the
amount of
such Person's liabilities under Capital Leases determined at any
date in
accordance with GAAP.
"Change of Control" means at any time:
(i) the Parent ceases to be the ultimate "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange
Act of
1934, as amended (the "Exchange Act")) of at least 99% of the
total
voting power of the Voting Stock of the Borrower;
(ii) any Person becomes the beneficial owner of
securities of the Parent representing 30% or more of the
then
outstanding Voting Stock of the Parent; or
(iii) during any period of twenty-four consecutive months
beginning after the Effective Date, individuals who at the
beginning
of such period constitute the Board of Directors of the Parent
(the
"Board"), together with any new director (other than a
director
designated by a person who has entered into an agreement with
the
Parent to effect a transaction described in clause (ii) of
this
Change of Control definition) whose election or nomination
for
election was approved by a vote of at least two-thirds of
the
directors then still in office who either were directors at
the
beginning of the period or whose election or nomination for
election
was previously so approved, cease for any reason to constitute
a
majority of the Board.
For purposes of the definition of Change of Control, "Person"
shall
have the meaning ascribed to such term in Section 3(a)(9) of the
Exchange
Act as supplemented by Section 13(d)(3) of the Exchange Act;
PROVIDED,
HOWEVER, that Person shall not include (i) the Parent or any
Wholly-Owned
Subsidiary, or (ii) any Person who, as of the Effective Date,
was the
beneficial owner of securities of the Parent representing 20% or
more of
the combined voting power.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as to any Bank, the obligation of such Bank
to
make Loans and to participate in Swingline Loans and Letters of
Credit
issued for the account of the Borrower hereunder in an aggregate
principal
or face amount at any one time outstanding not to exceed the
amount set
forth opposite such Bank's name under the heading "Commitment"
on Schedule
1 attached hereto and made a part hereof, as the same may be
reduced or
modified at any time or from time to time pursuant to the terms
hereof.
"Commitment Amount Increase" is defined in Section 1.15
hereof.
"Compliance Certificate" means a certificate in the form of
Exhibit B
hereto.
"Consolidated Net Income" means, for any period, the net income
(or
net loss) of the Parent and its Restricted Subsidiaries for such
period
computed on a consolidated basis in accordance with GAAP, but
excluding any
extraordinary profits or losses; PROVIDED THAT there shall be
included in
such determination for such period all such amounts attributable
to any
Person acquired pursuant to an Acquisition to the extent such
Person is not
subsequently sold or otherwise disposed of (other than in a
transaction
pursuant to which the business of such Person is retained by the
Parent or
a Subsidiary of the Parent) during such period for the portion
of such
period prior to such Acquisition.
19
<PAGE>
"Consolidated Net Worth" means, as of the date of any
determination
thereof, the amount reflected as stockholders' equity upon a
consolidated
balance sheet of the Parent and its Restricted Subsidiaries for
such date
computed on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision
of
any security issued by such Person or of any agreement,
instrument or
undertaking to which such Person is a party or by which it or
any of its
Property is bound.
"Controlled Group" means all members of a controlled group
of
corporations and all trades and businesses (whether or not
incorporated)
under common control that, together with the Parent or any of
its
Subsidiaries, are treated as a single employer under Section 414
of the
Code.
"Credit Documents" means this Agreement, the Notes, the
Applications,
the Letters of Credit and each Subsidiary Guarantee Agreement
delivered to
the Administrative Agent pursuant to Section 7.22 hereof.
"Credit Event" means the advancing of any Loan or Swingline
Loan, the
continuation of or conversion into a Eurocurrency Loan
denominated in an
Alternative Currency, or the issuance of, or extension of the
expiration
date or increase in the amount of, any Letter of Credit.
"Default" means any event or condition the occurrence of which
would,
with the passage of time or the giving of notice, or both,
constitute an
Event of Default.
"Designated Disbursement Account" means the account of the
Borrower
maintained with the Administrative Agent or its Affiliate and
designated in
writing to the Administrative Agent as the Borrower's
Designated
Disbursement Account (or such other account as the Borrower and
the
Administrative Agent may otherwise agree).
"Departing Bank" means each "Bank" party to the Existing
Credit
Agreement executing this Agreement as a Departing Bank, which
"Bank" shall
cease to have a Commitment and shall have no rights or
obligations
hereunder, except for such rights which by their terms survive
the
termination of the Existing Credit Agreement.
"Domestic Rate" is defined in Section 1.4(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to
maturity
at a rate specified in Section 1.4(a) hereof.
"Effective Date" means the date hereof.
"Eligible Assignee" means (a) a Bank, (b) an Affiliate of a
Bank,
(c) an Approved Fund, and (d) any other Person (other than a
natural
person) approved by (i) the Administrative Agent, (ii) the L/C
Issuer,
(iii) the Swingline Bank, and (iv) unless an Event of Default
has occurred
and is continuing, the Parent (each such approval not to be
unreasonably
withheld or delayed and if it is delayed for more than five (5)
Business
Days it is deemed to be given); PROVIDED that notwithstanding
the
foregoing, "Eligible Assignee" shall not include the Borrower or
any
Guarantor or any of the Parent's or Affiliates or
Subsidiaries.
20
<PAGE>
"Environmental and Health Laws" means any and all federal,
state,
local and foreign statutes, laws, regulations, ordinances,
judgments,
permits and other governmental rules or restrictions relating to
human
health, safety (including without limitation occupational safety
and health
standards), or the environment or to emissions, discharges or
releases of
pollutants, contaminants, hazardous or toxic substances, wastes
or any
other controlled or regulated substance into the environment,
including
without limitation ambient air, surface water, ground water or
land, or
otherwise relating to the manufacture, processing, distribution,
use,
treatment, storage, disposal, transport or handling of
pollutants,
contaminants, hazardous or toxic substances, wastes or any other
controlled
or regulated substance or the clean-up or other remediation
thereof.
"ERISA" is defined in Section 5.8 hereof.
"Eurocurrency Loan" means a Loan bearing interest prior to
maturity
at the rate specified in Section 1.4(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section
1.4(b)
hereof.
"Event of Default" means any of the events or circumstances
specified
in Section 8.1 hereof.
"Excess Interest" is defined in Section 12.24 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Existing Letters of Credit" is defined in Section 1.3(a)
hereof.
"Facility Fee" is defined in Section 2.1 hereof.
"Federal Funds Rate" means the fluctuating interest rate per
annum
described in part (x) of clause (ii) of the definition of
Domestic Rate in
Section 1.4(a) hereof.
"Fund" means any Person (other than a natural person) that is
(or
will be) engaged in making, purchasing, holding or otherwise
investing in
commercial loans and similar extensions of credit in the
ordinary course of
its business.
"GAAP" means, subject to Section 4.3 hereof, generally
accepted
accounting principles as in effect on the Effective Date,
applied by the
Parent and its Subsidiaries on a basis consistent with the
preparation of
the Parent's financial statements furnished to the Banks as
described in
Section 5.4 hereof.
"Guarantor" means (i) the Parent, Jones Lang LaSalle Americas,
Inc.,
a Maryland corporation, LaSalle Investment Management, Inc., a
Maryland
corporation, Jones Lang LaSalle International, Inc., a
Delaware
corporation, Jones Lang LaSalle Co-Investment, Inc., a
Maryland
corporation, Jones Lang LaSalle Limited, a company organized
under the laws
of England and Wales, Jones Lang LaSalle GmbH, a company
organized under
the laws of Germany and (ii) any other Subsidiary of the
Borrower
designated by the Borrower as a Guarantor as required by Section
7.22
hereof.
"Guaranty" by any Person means (without duplication) all
obligations
(other than endorsements in the ordinary course of business of
negotiable
instruments for deposit or collection) of such Person
guaranteeing or in
effect guaranteeing any Indebtedness, dividend or other
financial
obligation (including, without limitation, limited or full
recourse
obligations in connection with sales of receivables or any other
Property)
of any other Person (the "primary obligor") in any manner,
whether directly
or indirectly, including, without limitation, all obligations
incurred
through an agreement, contingent or otherwise, by such Person:
(i) to
purchase such Indebtedness or obligation or any Property or
assets
constituting security therefor, (ii) to advance or supply funds
(x) for the
21
<PAGE>
purchase or payment of such Indebtedness or obligation, or (y)
to maintain
working capital or other balance sheet condition, or otherwise
to advance
or make available funds for the purchase or payment of such
Indebtedness or
obligation, or (iii) to lease property or to purchase Securities
or other
property or services primarily for the purpose of assuring the
owner of
such Indebtedness or obligation of the ability of the primary
obligor to
make payment of the Indebtedness or obligation, or (iv)
otherwise to assure
the owner of the Indebtedness or obligation of the primary
obligor against
loss in respect thereof. For the purpose of all computations
made under
this Agreement, the amount of a Guaranty in respect of any
obligation shall
be deemed to be equal to the maximum aggregate amount of such
obligation at
the time the amount of the Guaranty is being determined or, if
the Guaranty
is limited to less than the full amount of such obligation, the
maximum
aggregate potential liability under the terms of the Guaranty at
the time
the amount of the Guaranty is being determined.
"Hazardous Material" means any substance or material which
is
hazardous or toxic, and includes, without limitation, (a)
asbestos,
polychlorinated biphenyls, dioxins and petroleum or its
by-products or
derivatives (including crude oil or any fraction thereof) and
(b) any other
material or substance classified or regulated as "hazardous" or
"toxic"
pursuant to any Environmental and Health Law.
"Indebtedness" means for any Person (without duplication),
(i) obligations of such Person for borrowed money, (ii)
obligations of such
Person representing the deferred purchase price of property or
services
other than accounts payable arising in the ordinary course of
business on
terms customary in the trade, (iii) obligations of such Person
evidenced by
notes, acceptances, or other instruments of such Person or
pursuant to
letters of credit issued for such Person's account, (iv)
obligations,
whether or not assumed, secured by Liens or payable out of the
proceeds or
production from Property now or hereafter owned or acquired by
such Person,
(v) Capitalized Lease Obligations of such Person, and (vi)
obligations for
which such Person is obligated pursuant to a Guaranty. For the
sake of
clarity, performance guarantees (other than guarantees of the
payment of
Indebtedness), performance and surety bonds and environmental,
"bad boy"
and completion guarantees provided by the Borrower, the Parent,
or any
Subsidiary, pension liabilities of the Parent or any Subsidiary
and
indebtedness consolidated onto the books and records of the
Parent for GAAP
purposes under either EITF 04-05 or Fin 46R which otherwise
would not be
consolidated, shall not be considered as Indebtedness.
"Interest Coverage Ratio" means as of the last day of any
calendar
quarter the ratio of Adjusted EBIT for the four calendar
quarters then
ended to Interest Expense for the same four calendar quarters
then ended.
"Interest Expense" means, for any period, the sum of all
interest
charges of the Parent and its Restricted Subsidiaries for such
period
determined on a consolidated basis in accordance with GAAP.
"Interest Period" is defined in Section 1.7 hereof.
"Investment" is defined in Section 7.14 hereof.
"L/C Commitment" means $100,000,000, as reduced pursuant to the
terms
hereof.
"L/C Documents" means the Letters of Credit, any draft or
other
document presented in connection with a drawing thereunder,
the
Applications and this Agreement.
"L/C Issuer" means Bank of Montreal, in its capacity as the
issuer of
Letters of Credit hereunder, and its successors in such capacity
as
provided in Section 1.3(f) hereof and, solely with respect to
the Existing
Letters of Credit, Harris N.A.
"L/C Obligations" means the aggregate U.S. Dollar Equivalent of
the
undrawn face amounts of all outstanding Letters of Credit and
all unpaid
Reimbursement Obligations.
22
<PAGE>
"Lending Office" is defined in Section 9.4 hereof.
"Letter of Credit" is defined in Section 1.3(a) hereof.
"Level I" exists at any date if, at such date, the Total Funded
Debt
to Adjusted EBITDA Ratio is less than 1.00 to 1.00.
"Level II" exists at any date if, at such date, Level I does
not
exist and the Total Funded Debt to Adjusted EBITDA Ratio is less
than 2.00
to 1.00.
"Level III" exists at any date if, at such date, neither Level I
nor
Level II exists.
"LIBOR" is defined in Section 1.4(b) hereof.
"Lien" means any interest in Property securing an obligation
owed to
a Person other than the owner of the Property, whether such
interest is
based on the common law, statute or contract, including, but not
limited
to, the security interest lien arising from a mortgage,
encumbrance,
pledge, conditional sale, security agreement or trust receipt,
or a lease,
consignment or bailment for security purposes. The term "Lien"
shall also
include survey exceptions or encumbrances, easements or
reservations, or
rights of others for rights-of-way, utilities and other similar
purposes,
or zoning or other restrictions as to the use of real
properties. For the
purposes of this definition, a Person shall be deemed to be the
owner of
any Property which it has acquired or holds subject to a
conditional sale
agreement, Capital Lease or other arrangement pursuant to which
title to
the Property has been retained by or vested in some other Person
for
security purposes, and such retention of title shall constitute
a "Lien."
"Loan" is defined in Section 1.1 hereof and, as so defined,
includes
a Domestic Rate Loan or Eurocurrency Loan, each of which is a
"type" of
Loan hereunder.
"Material Adverse Effect" means a material and adverse effect on
the
business, operations, Property or financial or other condition
of the
Parent and its Subsidiaries, taken as a whole.
"Maximum Rate" is defined in Section 12.24 hereof.
"Non-Real Estate Restricted Subsidiary" means a Restricted
Subsidiary
which is not established solely for the purpose of making
investments in
real estate and real estate related assets, including notes and
other
securities, as permitted under Section 7.14(j) or Section
7.14(k) hereof.
"Note" means any promissory note issued at the request of a
Bank
pursuant to Section 1.11 in the form of Exhibit A-1 evidencing
such Bank's
Loans or Exhibit A-2 evidencing the Swingline Bank's Swingline
Loans.
"Obligations" means all fees payable hereunder, all obligations
of
the Borrower to pay principal or interest on Loans, Swingline
Loans and L/C
Obligations, and all other payment obligations of the Borrower
or any
Guarantor arising under or in relation to any Credit
Document.
"Original Dollar Amount" means the amount of any Obligation
denominated in U.S. Dollars and, in relation to any Loan
denominated in an
Alternative Currency, the U.S. Dollar Equivalent of such Loan on
the day it
is advanced or continued for an Interest Period.
"Parent" means Jones Lang LaSalle Incorporated, a Maryland
corporation.
"Participating Bank" is defined in Section 1.3(d) hereof.
"Participating Interest" is defined in Section 1.3(d)
hereof.
23
<PAGE>
"PBGC" is defined in Section 5.8 hereof.
"Percentage" means, for each Bank, the percentage of the
Commitments
represented by such Bank's Commitment or, if the Commitments
have been
terminated, the percentage held by such Bank (including
through
participation interests in L/C Obligations and Swingline Loans)
of the
aggregate principal amount of all outstanding Obligations.
"Permitted Adjustment" means, for any period, transition
charges
incurred by the Parent or any Restricted Subsidiaries during
such period
relating to the Acquisition by the Parent of all of the
outstanding equity
of Spaulding and Slye LLC, a Delaware limited liability company,
to the
extent such charges do not exceed $10,000,000 in the aggregate
for all
periods.
"Person" means an individual, partnership, corporation,
limited
liability company, association, trust, unincorporated
organization or any
other entity or organization, including a government or any
agency or
political subdivision thereof.
"Plan" means at any time an employee pension benefit plan
covered by
Title IV of ERISA or subject to the minimum funding standards
under
Section 412 of the Code that is either (i) maintained by a
member of the
Controlled Group or (ii) maintained pursuant to a collective
bargaining
agreement or any other arrangement under which more than one
employer makes
contributions and to which a member of the Controlled Group is
then making
or accruing an obligation to make contributions or has within
the preceding
five plan years made contributions.
"Pricing Date" means, for any fiscal quarter of the Parent
ended
after the date hereof, the latest date by which the Parent is
required to
deliver a Compliance Certificate for such fiscal quarter
pursuant to
Section 7.6(b). The Applicable Margin established on a Pricing
Date shall
remain in effect until the next Pricing Date. If the Parent has
not
delivered a Compliance Certificate by the date such Compliance
Certificate
is required to be delivered under Section 7.6(b), Level III
shall be deemed
to exist from such required delivery date until a Compliance
Certificate is
delivered before the next Pricing Date. If the Parent
subsequently
delivers such a Compliance Certificate before the next Pricing
Date, the
Applicable Margin established by such late delivered Compliance
Certificate
shall take effect from the date of delivery until the next
Pricing Date.
In all other circumstances, the Applicable Margin established by
a
Compliance Certificate shall be in effect from the Pricing Date
that occurs
immediately after the end of the Parent's fiscal quarter covered
by such
Compliance Certificate until the next Pricing Date.
"Property" means any interest in any kind of property or
asset,
whether real, personal or mixed, or tangible or intangible,
whether now
owned or hereafter acquired.
"Quoted Rate" is defined in Section 1.2(c) hereof.
"Reimbursement Obligation" is defined in Section 1.3(c)
hereof.
"Required Banks" means, as of the date of determination
thereof,
Banks whose outstanding Loans and interest in Letters of Credit
and Unused
Commitments constitute more than 51% of the sum of the total
outstanding
Loans, interests in Letters of Credit, and Unused Commitments of
the Banks.
"Restricted Subsidiary" means any Subsidiary of the Parent other
than
an Unrestricted Subsidiary.
"Revaluation Date" means, with respect to any Letter of
Credit
denominated in an Alternative Currency, (a) the date of issuance
thereof,
(b) the date of each amendment thereto having the effect of
increasing the
amount thereof, (c) the last day of each calendar month, and (d)
each
additional date as the Administrative Agent or the Required
Banks shall
specify.
24
<PAGE>
"Revolving Credit" means the credit facility for making Loans
and
Swingline Loans and issuing Letters of Credit described in
Sections 1.1,
1.2 and 1.3 hereof.
"SEC" means the Securities and Exchange Commission.
"Security" has the same meaning as in Section 2(l) of the
Securities
Act of 1933, as amended.
"Set-Off" is defined in Section 12.7 hereof.
"Subordinated Indebtedness" means any Indebtedness which is
subordinated in right of payment to the prior payment of the
Loans and
other Obligations, in a principal amount and pursuant to
documentation,
containing interest rates, payment terms, maturities,
amortization
schedules, covenants, defaults, remedies and other material
terms in form
and substance satisfactory to the Banks.
"Subsidiary" means a corporation, partnership or other entity
that,
under GAAP, is included in the consolidated financial statements
of the
Parent.
"Subsidiary Guarantee Agreement" means a letter to the
Administrative
Agent in the form of Exhibit C hereto executed by a Subsidiary
whereby it
acknowledges it is party hereto as a Guarantor under Section 11
hereof.
"Swingline" means the credit facility for making one or more
Swingline Loans described in Section 1.2 hereof.
"Swingline Bank" means BMO Capital Markets Financing, Inc.,
acting in
its capacity as the lender of Swingline Loans hereunder, or any
successor
Bank acting in such capacity appointed pursuant to Section 12.12
hereof.
"Swingline Commitment" means $25,000,000 as the same may be
reduced
from time to time pursuant to Section 1.13 hereof.
"Swingline Loan" is defined in Section 1.2 hereof.
"TARGET Settlement Day" means any day on which the
Trans-European
Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is
open.
"Termination Date" means June 6, 2012.
"Total Funded Debt" means, at any time the same is to be
determined,
the aggregate of all Indebtedness of the Parent and its
Restricted
Subsidiaries determined without duplication on a consolidated
basis MINUS
(i) the aggregate stated amount of performance letters of credit
issued for
the account of the Parent or any Restricted Subsidiary other
than any such
Letter of Credit issued hereunder and (ii) the aggregate
principal amount
of debt for borrowed money owed by the Parent or any Restricted
Subsidiary
under overdraft facilities but only to the extent of cash held
by the
Parent and its Restricted Subsidiaries on a consolidated
basis.
"Total Funded Debt to Adjusted EBITDA Ratio" means as of the
last day
of any calendar quarter the ratio of the Total Funded Debt as of
such day
to Adjusted EBITDA for the four calendar quarters then
ended.
"Unfunded Vested Liabilities" means, with respect to any Plan at
any
time, the amount (if any) by which (i) the present value of all
vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the
fair
market value of all Plan assets allocable to such benefits, all
determined
as of the then most recent valuation date for such Plan, but
only to the
extent that such excess represents a potential liability of a
member of the
Controlled Group to the PBGC or the Plan under Title IV of
ERISA.
25
<PAGE>
"Unrestricted Subsidiary" means any Subsidiary of the Parent
(other
than a Guarantor or the Borrower) which (i) is established for
the sole
purpose of investing in real estate and real estate related
assets
including notes and other securities and (ii) is designated by
the Parent
(with prior written notice to the Administrative Agent) to be
an
Unrestricted Subsidiary; PROVIDED THAT no Subsidiary may be an
Unrestricted
Subsidiary for more than 180 days.
"Unused Commitments" means, at any time, the difference between
the
Commitments then in effect and the aggregate outstanding
Original Dollar
Amount of Loans, and the U.S. Dollar Equivalent of L/C
Obligations.
"U.S. Dollars" and "$" each means the lawful currency of the
United
States of America.
"U.S. Dollar Equivalent" means (a) the amount of any Obligation
or
Letter of Credit denominated in U.S. Dollars, (b) in relation to
any
Obligation or Letter of Credit denominated in an Alternative
Currency, the
amount of U.S. Dollars which would be realized by converting an
Alternative
Currency into U.S. Dollars at the exchange rate quoted to
the
Administrative Agent, at approximately 11:00 a.m. (London time)
three
Business Days prior (i) to the date on which a computation
thereof is
required to be made and (ii) in the case of L/C Obligations, on
any
Revaluation Date, in each case by major banks in the interbank
foreign
exchange market for the purchase of U.S. Dollars for such
Alternative
Currency.
"Voting Stock" of any Person means capital stock of any class
or
classes or other equity interests (however designated) having
ordinary
voting power for the election of directors or similar governing
body of
such Person, other than stock or other equity interests having
such power
only by reason of the happening of a contingency.
"Welfare Plan" means a "welfare plan", as defined in Section
3(1) of
ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of
the
Parent means a Subsidiary of which all of the issued and
outstanding shares
of stock or other equity interests (other than directors'
qualifying shares
as required by law) shall be owned by the Parent and/or one or
more of its
Wholly-Owned Subsidiaries.
SECTION 4.2. INTERPRETATION. The foregoing definitions shall
be
equally applicable to both the singular and plural forms of the
terms
defined. All references to times of day in this Agreement shall
be
references to Chicago, Illinois time unless otherwise
specifically
provided. Where the character or amount of any asset or
liability or item
of income or expense is required to be determined or any
consolidation or
other accounting computation is required to be made for the
purposes of
this Agreement, the same shall be done in accordance with GAAP,
to the
extent applicable, except where such principles are inconsistent
with the
specific provisions of this Agreement.
SECTION 4.3. CHANGE IN ACCOUNTING PRINCIPLES. If, after the date
of
this Agreement, there shall occur any change in GAAP from those
used in the
preparation of the financial statements referred to in Section
7.6 hereof
and such change shall result in a material change in the method
of
calculation of any financial covenant, standard or term found in
this
Agreement, either the Borrower or the Required Banks may by
notice to the
Banks and the Borrower, respectively, require that the Banks and
the
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