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<PAGE>
EXHIBIT 4.5
EXECUTION COPY
Published CUSIP Number: 45167SAA0
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$600,000,000
CREDIT AGREEMENT
Dated as of December 14, 2004
among
IDEX CORPORATION,
as the Company,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender and
L/C Issuer,
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
LASALLE BANK, NATIONAL ASSOCIATION,
MIZUHO CORPORATE BANK, LTD. and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agents
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC
and
WACHOVIA CAPITAL MARKETS LLC,
as Lead Arrangers and Joint Book Managers
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS................................................. 1
1.01 Certain Defined
Terms....................................... 1
1.02 Other Interpretive
Provisions............................... 7
1.03 Accounting
Terms............................................ 7
1.04 Exchange Rates; Currency
Equivalents........................ 7
1.05 Additional Alternative
Currencies........................... 7
1.06 Change of
Currency.......................................... 7
1.07
Rounding.................................................... 7
1.08 Times of
Day................................................ 7
1.09 Letter of Credit
Amounts.................................... 7
ARTICLE II THE
CREDITS................................................. 7
2.01 Committed
Loans............................................. 7
2.02 Borrowings, Conversions and Continuations of Committed
Loans......................................................
7
2.03 Bid
Loans................................................... 7
2.04 Letters of
Credit........................................... 7
2.05 Swing Line
Loans............................................ 7
2.06
Prepayments................................................. 7
2.07 Termination or Reduction of
Commitments..................... 7
2.08 Repayment of
Loans.......................................... 7
2.09
Interest.................................................... 7
2.10
Fees........................................................ 7
2.11 Computation of Interest and
Fees............................
2.12 Evidence of
Debt............................................ 7
2.13 Payments Generally; Administrative Agent's
Clawback......... 7
2.14 Sharing of Payments by
Lenders.............................. 7
2.15 Increase in
Commitments..................................... 7
7
ARTICLE III TAXES, YIELD PROTECTION AND
ILLEGALITY...................... 7
3.01
Taxes....................................................... 7
3.02
Illegality.................................................. 7
3.03 Inability to Determine
Rates................................ 7
3.04 Increased
Costs............................................. 7
3.05 Compensation for
Losses..................................... 7
3.06 Mitigation Obligations; Replacement of
Lenders.............. 7
3.07
Survival.................................................... 7
7
ARTICLE IV CONDITIONS PRECEDENT TO CREDIT
EXTENSIONS................... 7
4.01 Conditions of Initial Credit
Extensions..................... 7
4.02 Conditions to All Credit
Extensions......................... 7
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ARTICLE V REPRESENTATIONS AND
WARRANTIES.............................. 7
5.01 Corporate Existence and
Power............................... 7
5.02 Corporate Authorization; No
Contravention................... 7
5.03 Governmental
Authorization.................................. 7
5.04 Binding
Effect.............................................. 7
5.05
Litigation.................................................. 7
5.06 No
Default.................................................. 7
5.07 ERISA
Compliance............................................ 7
5.08 Use of Proceeds; Margin
Regulations......................... 7
5.09 Title to
Properties......................................... 7
5.10
Taxes....................................................... 7
5.11 Financial
Condition......................................... 7
5.12 Environmental
Matters....................................... 7
5.13 Regulated
Entities.......................................... 7
5.14
Subsidiaries................................................ 7
5.15
Insurance................................................... 7
5.16 Swap
Obligations............................................ 7
5.17 Full
Disclosure............................................. 7
7
ARTICLE VI AFFIRMATIVE
COVENANTS....................................... 7
6.01 Financial
Statements........................................ 7
6.02 Certificates; Other
Information............................. 7
6.03
Notices..................................................... 7
6.04 Preservation of Corporate Existence,
Etc.................... 7
6.05 Maintenance of
Property..................................... 7
6.06
Insurance................................................... 7
6.07 Payment of Tax
Obligations.................................. 7
6.08 Compliance with
Laws........................................ 7
6.09 Compliance with
ERISA....................................... 7
6.10 Inspection of Property and Books and
Records................ 7
6.11 Environmental
Laws.......................................... 7
6.12 Use of
Proceeds............................................. 7
7
ARTICLE VII NEGATIVE AND FINANCIAL
COVENANTS............................ 7
7.01 Limitation on
Liens......................................... 7
7.02 Disposition of
Assets....................................... 7
7.03 Consolidations and
Mergers.................................. 7
7.04 Loans and
Investments....................................... 7
7.05 Limitation on
Indebtedness.................................. 7
7.06 Transactions with
Affiliates................................ 7
7.07 Contingent
Obligations...................................... 7
7.08 Restricted
Payments......................................... 7
7.09
ERISA....................................................... 7
7.10 Change in
Business.......................................... 7
7.11 Accounting
Changes.......................................... 7
7.12 Modifications, etc. of Subordinated Debt and Related
Documents..................................................
7
7.13
Sale-Leasebacks............................................. 7
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7.14 No Negative Pledges; Subsidiary
Payments.................... 7
7.15 Financial
Covenants......................................... 7
ARTICLE VIII EVENTS OF
DEFAULT........................................... 7
8.01 Event of
Default............................................ 7
8.02 Remedies Upon Event of
Default.............................. 7
8.03 Application of
Funds........................................ 7
7
ARTICLE IX THE
AGENT................................................... 7
9.01 Appointment and
Authority................................... 7
9.02 Rights as a
Lender.......................................... 7
9.03 Exculpatory
Provisions...................................... 7
9.04 Reliance by Administrative
Agent............................ 7
9.05 Delegation of
Duties........................................ 7
9.06 Resignation of Administrative
Agent......................... 7
9.07 Non-Reliance on Administrative Agent and Other
Lenders...... 7
9.08 No Other Duties,
Etc........................................ 7
7
ARTICLE X
MISCELLANEOUS............................................... 7
10.01 Amendments,
Etc............................................. 7
10.02 Notices; Effectiveness; Electronic
Communication............ 7
10.03 No Waiver; Cumulative
Remedies.............................. 7
10.04 Expenses; Indemnity; Damage
Waiver.......................... 7
10.05 Payments Set
Aside.......................................... 7
10.06 Successors and
Assigns...................................... 7
10.07 Treatment of Certain Information;
Confidentiality........... 7
10.08 Right of
Setoff............................................. 7
10.09 Interest Rate
Limitation.................................... 7
10.10 Counterparts; Integration;
Effectiveness.................... 7
10.11 Survival of Representations and
Warranties.................. 7
10.12
Severability................................................ 7
10.13 Replacement of
Lenders...................................... 7
10.14 Governing Law; Jurisdiction;
Etc............................ 7
10.15 Waiver of Jury
Trial........................................ 7
10.16 USA PATRIOT Act
Notice...................................... 7
10.17 Judgment
Currency........................................... 7
10.18 Entire
Agreement............................................ 7
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SCHEDULES
Schedule 1.01 Mandatory Cost Formulae
Schedule 2.01 Commitments and Applicable Percentages
Schedule 2.04 Existing Letters of Credit
Schedule 5.05 Litigation
Schedule 5.07 ERISA Matters
Schedule 5.11 Permitted Liabilities
Schedule 5.12 Environmental Matters
Schedule 5.14 Subsidiaries and Minority Interests
Schedule 5.15 Insurance Matters
Schedule 7.01 Permitted Liens
Schedule 7.04 Permitted Investments
Schedule 7.05 Permitted Indebtedness
Schedule 7.07 Contingent Obligations
Schedule 10.02 Lending Offices; Addresses for Notices
EXHIBITS
Exhibit A Form of Committed Loan Notice
Exhibit B-1 Form of Bid Request
Exhibit B-2 Form of Competitive Bid
Exhibit C Form of Swing Line Loan Notice
Exhibit D Form of Note
Exhibit E Form of Compliance Certificate
Exhibit F Form of Assignment and Assumption
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 14, 2004
among IDEX
CORPORATION, a Delaware corporation (the "Company"), each lender
from time to
time party hereto (collectively, the "Lenders" and individually,
a "Lender"),
and BANK OF AMERICA, N.A., as Administrative Agent, Swing Line
Lender and L/C
Issuer.
The Company has requested that the Lenders provide a revolving
credit
facility and the Lenders are willing to do so on the terms and
conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.01 CERTAIN DEFINED TERMS. As used in this Agreement, the
following
terms have the meanings set forth below:
"Absolute Rate" means a fixed rate of interest expressed in
multiples of
1/100th of one basis point.
"Absolute Rate Loan" means a Bid Loan that bears interest at a
rate
determined with reference to an Absolute Rate.
"Accounts Receivable" means presently existing and hereafter
arising or
acquired accounts receivable, general intangibles, choses in
action and other
forms of obligations and receivables relating in any way to
Inventory or arising
from the sale of Inventory or the rendering of services or
howsoever otherwise
arising, and, with respect to any of the foregoing receivables
or obligations,
(a) all of the interest of the Company or any of its
Subsidiaries in the goods
(including returned goods) the sale of which gave rise to such
receivable or
obligation after the passage of title thereto to any obligor,
(b) all other
Liens and property subject thereto from time to time purporting
to secure
payment of such receivables or obligations, (c) all guarantees,
insurance,
letters of credit and other agreements or arrangements of
whatever character
from time to time supporting or securing payment of any such
receivables or
obligations, (d) all interests of the Receivables Subsidiary
under the documents
evidencing a Permitted Receivables Purchase Facility and any
permitted
performance guaranty given in connection therewith, and (e) all
records relating
to any of the foregoing and all proceeds and products of any of
the foregoing.
"Acquisition" means any transaction or series of related
transactions for
the purpose of or resulting, directly or indirectly, in (a) the
acquisition of
all or substantially all of the assets of a Person, or of any
business or
division of a Person or (b) the acquisition of in excess of 50%
of the capital
stock, partnership interests, membership interests or equity of
any Person, or
otherwise causing any Person to become a Subsidiary.
"Administrative Agent" means Bank of America in its capacity
as
administrative agent under any of the Loan Documents, or any
successor
administrative agent.
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"Administrative Agent's Office" means, with respect to any
currency, the
Administrative Agent's address and, as appropriate, account as
set forth on
Schedule 10.02 with respect to such currency, or such other
address or account
with respect to such currency as the Administrative Agent may
from time to time
notify to the Company and the Lenders.
"Administrative Questionnaire" means an Administrative
Questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, another Person
that
directly, or indirectly through one or more intermediaries,
Controls or is
Controlled by or is under common Control with the Person
specified.
"Aggregate Commitments" means the Commitments of all the
Lenders.
"Agreement" means this Credit Agreement as the same may be
amended,
supplemented, amended and restated or otherwise modified from
time to time.
"Alternative Currency" means each of Euro, Sterling, Yen, Swiss
Francs,
Canadian Dollars and each other currency (other than Dollars)
that is approved
in accordance with Section 1.05.
"Alternative Currency Equivalent" means, at any time, with
respect to any
amount denominated in Dollars, the equivalent amount thereof in
the applicable
Alternative Currency as determined by the Administrative Agent
or the L/C
Issuer, as the case may be, at such time on the basis of the
Spot Rate
(determined in respect of the most recent Revaluation Date) for
the purchase of
such Alternative Currency with Dollars.
"Alternative Currency Sublimit" means an amount equal to the
lesser of the
Aggregate Commitments and $300,000,000. The Alternative Currency
Sublimit is
part of, and not in addition to, the Aggregate Commitments.
"Applicable Percentage" means with respect to any Lender at any
time, the
percentage (carried out to the ninth decimal place) of the
Aggregate Commitments
represented by such Lender's Commitment at such time. If the
commitment of each
Lender to make Loans and the obligation of the L/C Issuer to
make L/C Credit
Extensions have been terminated pursuant to Section 8.02 or if
the Aggregate
Commitments have expired, then the Applicable Percentage of each
Lender shall be
determined based on the Applicable Percentage of such Lender
most recently in
effect, giving effect to any subsequent assignments. The initial
Applicable
Percentage of each Lender is set forth opposite the name of such
Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender
becomes a party hereto, as applicable.
"Applicable Rate" means, from time to time, the following
percentages per
annum, based upon the Debt Rating as set forth below:
2
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APPLICABLE RATE
EUROCURRENCY
RATE +
------------
PRICING DEBT RATINGS FACILITY LETTERS OF BASE RATE
LEVEL S&P/MOODY'S FEE CREDIT +
------- -------------- -------- ------------ ---------
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1 A/A2 or better 8.0 27.0 0
2 A-/A3 10.0 35.0 0
3 BBB+/Baa1 12.5 47.5 0
4 BBB/Baa2 15.0 55.0 0
5 BBB-/Baa3 20.0 75.0 0
or worse
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"Debt Rating" means, as of any date of determination, the rating
as
determined by either S&P or Moody's (collectively, the "Debt
Ratings") of
the Company's non-credit-enhanced, senior unsecured long-term
debt;
provided that if a Debt Rating is issued by each of the
foregoing rating
agencies, then the higher of such Debt Ratings shall apply (with
the Debt
Rating for Pricing Level 1 being the highest and the Debt Rating
for
Pricing Level 5 being the lowest), unless there is a split in
Debt
Ratings of more than one level, in which case the Pricing Level
that is
one Pricing Level higher than the lower Debt Rating shall
apply.
Initially, the Applicable Rate shall be determined based upon
the Debt Rating
specified in the certificate delivered pursuant to Section
4.01(f)(iv).
Thereafter, each change in the Applicable Rate resulting from a
publicly
announced change in the Debt Rating shall be effective, in the
case of an
upgrade, during the period commencing on the date of delivery by
the Company to
the Administrative Agent of notice thereof pursuant to Section
6.03(e) and
ending on the date immediately preceding the effective date of
the next such
change and, in the case of a downgrade, during the period
commencing on the date
of the public announcement thereof and ending on the date
immediately preceding
the effective date of the next such change.
"Applicable Time" means, with respect to any borrowings and
payments in
any Alternative Currency, the local time in the place of
settlement for such
Alternative Currency as may be determined by the Administrative
Agent or the L/C
Issuer, as the case may be, to be necessary for timely
settlement on the
relevant date in accordance with normal banking procedures in
the place of
payment.
"Arrangers" means Banc of America Securities LLC and Wachovia
Capital
Markets LLC, in their capacities as lead arrangers.
"Assignment and Assumption" means an assignment and assumption
entered
into by a Lender and an Eligible Assignee (with the consent of
any party whose
consent is required by Section 10.06(b)), and accepted by the
Administrative
Agent, in substantially the form of Exhibit F or any other form
approved by the
Administrative Agent.
3
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"Attributable Indebtedness" means, without duplication, on any
date, (a)
in respect of any Capital Lease of any Person, the capitalized
amount thereof
that would appear on a balance sheet of such Person prepared as
of such date in
accordance with GAAP, (b) in respect of any Off Balance Sheet
Obligation which
is a lease, the capitalized amount of the remaining lease
payments under the
relevant lease that would appear on a balance sheet of such
Person prepared as
of such date in accordance with GAAP if such lease were
accounted for as a
capital lease, (c) in respect of any Permitted Receivables
Purchase Facility,
the amount of Receivables Facility Attributed Indebtedness and
(d) in respect of
any other Off Balance Sheet Obligation, the amount of such
Obligations which
would reasonably be expected to be characterized as indebtedness
upon the
insolvency or bankruptcy of such Person.
"Availability Period" means the period from and including the
Closing Date
to the earliest of (a) the Maturity Date, (b) the date of
termination of the
Aggregate Commitments pursuant to Section 2.07, and (c) the date
of termination
of the commitment of each Lender to make Loans and of the
obligation of the L/C
Issuer to make L/C Credit Extensions pursuant to Section
8.02.
"Bank of America" means Bank of America, N.A. and its
successors.
"Base Rate" means for any day a fluctuating rate per annum equal
to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of interest
in effect for such day as publicly announced from time to time
by Bank of
America as its "prime rate." The "prime rate" is a rate set by
Bank of America
based upon various factors including Bank of America's costs and
desired return,
general economic conditions and other factors, and is used as a
reference point
for pricing some loans, which may be priced at, above, or below
such announced
rate. Any change in such rate announced by Bank of America shall
take effect at
the opening of business on the day specified in the public
announcement of such
change.
"Base Rate Committed Loan" means a Committed Loan that is a Base
Rate
Loan.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
All Base Rate Loans shall be denominated in Dollars.
"Bid Borrowing" means a borrowing consisting of simultaneous Bid
Loans of
the same Type from each of the Lenders whose offer to make one
or more Bid Loans
as part of such borrowing has been accepted under the auction
bidding procedures
described in Section 2.03.
"Bid Loan" has the meaning specified in Section 2.03(a).
"Bid Loan Lender" means, in respect of any Bid Loan, the Lender
making
such Bid Loan to the Company.
"Bid Loan Sublimit" means an amount equal to $50,000,000. The
Bid Loan
Sublimit is part of, and not in addition to, the Aggregate
Commitments.
"Bid Request" means a written request for one or more Bid
Loans
substantially in the form of Exhibit B-1.
4
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"BofA Fee Letter" means the letter agreement, dated as of
November 15,
2004, among the Company, the Administrative Agent and Banc of
America Securities
LLC.
"Borrowing" means a Committed Borrowing, a Bid Borrowing or a
Swing Line
Borrowing, as the context may require.
"Business Day" means any day other than a Saturday, Sunday or
other day on
which commercial banks are authorized to close under the Laws
of, or are in fact
closed in, the state where the Administrative Agent's Office
with respect to
Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to
a
Eurocurrency Rate Committed Loan denominated in Dollars, any
fundings,
disbursements, settlements and payments in Dollars in respect of
any such
Eurocurrency Rate Committed Loan, or any other dealings in
Dollars to be
carried out pursuant to this Agreement in respect of any such
Eurocurrency
Rate Committed Loan, means any such day on which dealings in
deposits in
Dollars are conducted by and between banks in the London
interbank
eurodollar market;
(b) if such day relates to any interest rate settings as to
a
Eurocurrency Rate Committed Loan denominated in Euro, any
fundings,
disbursements, settlements and payments in Euro in respect of
any such
Eurocurrency Rate Committed Loan, or any other dealings in Euro
to be
carried out pursuant to this Agreement in respect of any such
Eurocurrency
Rate Committed Loan, means a TARGET Day;
(c) if such day relates to any interest rate settings as to
a
Eurocurrency Rate Committed Loan denominated in a currency other
than
Dollars or Euro, means any such day on which dealings in
deposits in the
relevant currency are conducted by and between banks in the
London or
other applicable offshore interbank market for such currency;
and;
(d) if such day relates to any fundings, disbursements,
settlements and payments in a currency other than Dollars or
Euro in
respect of a Eurocurrency Rate Committed Loan denominated in a
currency
other than Dollars or Euro, or any other dealings in any
currency other
than Dollars or Euro to be carried out pursuant to this
Agreement in
respect of any such Eurocurrency Rate Committed Loan (other than
any
interest rate settings), means any such day on which banks are
open for
foreign exchange business in the principal financial center of
the
country of such currency.
"Canadian Dollar" means the lawful currency of Canada.
"Capital Lease" has the meaning specified in the definition of
"Capital
Lease Obligations."
"Capital Lease Obligations" means the principal component of all
monetary
obligations of the Company or any of its Subsidiaries under any
leasing or
similar arrangement which, in accordance with GAAP, is
classified as a capital
lease ("Capital Lease").
5
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"Cash Collateralize" has the meaning specified in Section
2.04(g).
"Change in Law" means the occurrence, after the date of this
Agreement, of
any of the following: (a) the adoption or taking effect of any
law, rule,
regulation or treaty, (b) any change in any law, rule regulation
or treaty or in
the administration, interpretation or application thereof by any
Governmental
Authority or (c) the making or issuance of any request,
guideline or directive
(whether or not having the force of law) by any Governmental
Authority.
"Change of Control" means any of the following: (i) any person
or group of
persons (within the meaning of the Exchange Act) shall have
acquired beneficial
ownership (within the meaning of Rule 13d promulgated by the SEC
under the
Exchange Act) of 30% or more of the issued and outstanding
shares of the
Company's capital stock having the right to vote for the
election of directors
of the Company under ordinary circumstances; or (ii) during any
period of twelve
consecutive calendar months, individuals who at the beginning of
such period
constituted the Company's board of directors (together with any
new directors
whose election by the Company's board of directors or whose
nomination for
election by the Company's stockholders was approved by a vote of
a majority of
the directors then still in office who either were directors at
the beginning of
such period or whose election or nomination for election was
previously so
approved) cease for any reason other than death or disability to
constitute a
majority of the directors then in office.
"Closing Date" means the first date all the conditions precedent
in
Section 4.01 are satisfied or waived in accordance with Section
10.01.
"Code" means the Internal Revenue Code of 1986, and all rules
and
regulations promulgated thereunder.
"Commitment" means, as to each Lender, its obligation to (a)
make
Committed Loans to the Company pursuant to Section 2.01, (b)
purchase
participations in L/C Obligations, and (c) purchase
participations in Swing Line
Loans, in an aggregate principal amount at any one time
outstanding not to
exceed the Dollar amount set forth opposite such Lender's name
on Schedule 2.01
or in the Assignment and Assumption pursuant to which such
Lender becomes a
party hereto, as applicable, as such amount may be adjusted from
time to time in
accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of
simultaneous
Committed Loans of the same Type, in the same currency and, in
the case of
Eurocurrency Rate Committed Loans, having the same Interest
Period made by each
of the Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed
Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c)
a continuation
of Eurocurrency Rate Committed Loans, pursuant to Section
2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Company" has the meaning specified in the introductory
paragraph hereto.
6
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"Competitive Bid" means a written offer by a Lender to make one
or more
Bid Loans, substantially in the form of Exhibit B-2, duly
completed and signed
by a Lender.
"Compliance Certificate" means a certificate substantially in
the form of
Exhibit E.
"Consolidated Debt" means, as of any date of determination, for
the
Company and its Subsidiaries, without duplication, the sum of
(a) all
Indebtedness of the Company determined on a consolidated basis
in accordance
with GAAP, (b) Attributable Indebtedness in respect of Capital
Leases, Off
Balance Sheet Obligations and a Permitted Receivables Purchase
Facility, and (c)
all Guaranty Obligations with respect to debt of the types
specified in
subsections (a) and (b) above of Persons other than the Company
or any
Subsidiary.
"Consolidated Interest Expense" means, for any period, the sum,
without
duplication, of total interest expense (including that
attributable to Capital
Leases in accordance with GAAP) of the Company and its
Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness
of the Company
and its Subsidiaries, including, without limitation, all
commissions, discounts
and other fees and charges owed with respect to letters of
credit and bankers'
acceptance financing, but excluding, however, any amortization
of deferred
financing costs, all as determined on a consolidated basis for
the Company and
its consolidated Subsidiaries in accordance with GAAP plus the
interest
component of Off Balance Sheet Obligations. Any calculation of
pro forma
Consolidated Interest Expense with respect to an Acquisition
shall be done on
the basis that (A) any Indebtedness incurred or assumed in
connection with such
Acquisition was incurred or assumed at the beginning of the pro
forma period,
(B) such Indebtedness was repaid from operating cash flow over
the pro forma
period at the intervals and in the amounts reasonably projected
to be paid in
respect of such Indebtedness over the 12-month period
immediately following the
Acquisition and (C) if such Indebtedness bears a floating
interest rate, such
interest shall be paid over the pro forma period at the rate in
effect on the
date of such Acquisition.
"Consolidated Net Income" and "Consolidated Net Loss" mean,
respectively,
with respect to any period for any Person, the aggregate of the
net income
(loss) of such Person for such period, determined in accordance
with GAAP on a
consolidated basis, provided that the net income (loss) of any
other Person
which is not a Subsidiary shall be included in the Consolidated
Net Income of
such Person only to the extent of the amount of cash dividends
or distributions
paid to such Person or to a consolidated Subsidiary of such
Person. There shall
be excluded from Consolidated Net Income (a) non-cash
extraordinary losses as
long as no reserve is required to be established in accordance
with GAAP and (b)
the excess (but not the deficit), if any, of (i) any gain which
must be treated
as an extraordinary item under GAAP or any gain realized upon
the sale or other
disposition of any real property or equipment that is not sold
in the ordinary
course of business or of any capital stock of a Subsidiary of
such Person over
(ii) any loss which is not excluded pursuant to subsection (a)
above.
"Consolidated Net Worth" means, as of any date of determination,
for the
Company and its Subsidiaries on a consolidated basis,
shareholders' equity as of
that date determined in accordance with GAAP.
7
<PAGE>
"Consolidated Total Assets" means the total assets of the
Company and its
Subsidiaries determined in accordance with GAAP.
"Contingent Obligation" means, as to any Person, any direct or
indirect
liability of that Person, whether or not contingent, with or
without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of
credit or other
obligation (the "primary obligations") of another Person (the
"primary
obligor"), including any obligation of that Person (i) to
purchase, repurchase
or otherwise acquire such primary obligations or any security
therefor, (ii) to
advance or provide funds for the payment or discharge of any
such primary
obligation, or to maintain working capital or equity capital of
the primary
obligor or otherwise to maintain the net worth or solvency or
any balance sheet
item, level of income or financial condition of the primary
obligor, (iii) to
purchase property, securities or services primarily for the
purpose of assuring
the owner of any such primary obligation of the ability of the
primary obligor
to make payment of such primary obligation, or (iv) otherwise to
assure or hold
harmless the holder of any such primary obligation against loss
in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any
Surety
Instrument issued for the account of that Person or as to which
that Person is
otherwise liable for reimbursement of drawings or payments; (c)
to purchase any
materials, supplies or other property from, or to obtain the
services of,
another Person if the relevant contract or other related
document or obligation
requires that payment for such materials, supplies or other
property, or for
such services, shall be made regardless of whether delivery of
such materials,
supplies or other property is ever made or tendered, or such
services are ever
performed or tendered, or (d) in respect of any Swap Contract.
The amount of any
Contingent Obligation shall (a) in the case of Guaranty
Obligations, be deemed
equal to the stated or determinable amount of the primary
obligation in respect
of which such Guaranty Obligation is made or, if not stated or
if
indeterminable, the maximum reasonably anticipated liability in
respect thereof
provided, that if any Guaranty Obligation (i) is limited to an
amount less than
the obligations guaranteed or supported the amount of the
corresponding
Contingent Obligation shall be equal to the lesser of the amount
determined
pursuant to the initial clause of this sentence and the amount
to which such
guaranty is so limited or (ii) is limited to recourse against a
particular asset
or assets of such Person the amount of the corresponding
Contingent Obligation
shall be equal to the lesser of the amount determined pursuant
to the initial
clause of this sentence and the fair market value of such asset
or assets at the
date for determination of the amount of the Contingent
Obligation, (b) in the
case of other Contingent Obligations other than in respect of
Swap Contracts, be
equal to the maximum reasonably anticipated liability in respect
thereof, and
(c) in the case of Contingent Obligations in respect of Swap
Contracts, be equal
to the Swap Termination Value.
"Contractual Obligation" means, as to any Person, any provision
of any
security issued by such Person or of any agreement, undertaking,
contract,
indenture, mortgage, deed of trust or other instrument, document
or agreement to
which such Person is a party or by which it or any of its
property is bound.
"Control" means the possession, directly or indirectly, of the
power to
direct or cause the direction of the management or policies of a
Person, whether
through the ability to exercise voting power, by contract or
otherwise.
"Controlling" and "Controlled" have meanings correlative
thereto.
8
<PAGE>
"Credit Extension" means each of the following: (a) a Borrowing
and (b) an
L/C Credit Extension.
"Debt Rating" has the meaning set forth in the definition of
"Applicable
Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United
States, and
all other liquidation, conservatorship, bankruptcy, assignment
for the benefit
of creditors, moratorium, rearrangement, receivership,
insolvency,
reorganization, or similar debtor relief Laws of the United
States or other
applicable jurisdictions from time to time in effect and
affecting the rights of
creditors generally.
"Default" means any event or condition that constitutes an Event
of
Default or that, with the giving of any notice, the passage of
time, or both,
would be an Event of Default.
"Default Rate" means (a) when used with respect to Obligations
other than
Letter of Credit Fees, an interest rate equal to (i) the Base
Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus
(iii) 2% per annum;
provided, however, that with respect to a Eurocurrency Rate
Loan, the Default
Rate shall be an interest rate equal to the interest rate
(including any
Applicable Rate and any Mandatory Cost) otherwise applicable to
such Loan plus
2% per annum, and (b) when used with respect to Letter of Credit
Fees, a rate
equal to the Applicable Rate plus 2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund
any
portion of the Committed Loans, participations in L/C
Obligations or
participations in Swing Line Loans required to be funded by it
hereunder within
one Business Day of the date required to be funded by it
hereunder, (b) has
otherwise failed to pay over to the Administrative Agent or any
other Lender any
other amount required to be paid by it hereunder within one
Business Day of the
date when due, unless the subject of a good faith dispute, or
(c) has been
deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.
"Disposition" has the meaning specified in Section 7.02.
"Dollar" and "$" mean lawful currency of the United States.
"Dollar Equivalent" means, at any time, (a) with respect to any
amount
denominated in Dollars, such amount, and (b) with respect to any
amount
denominated in any Alternative Currency, the equivalent amount
thereof in
Dollars as determined by the Administrative Agent or the L/C
Issuer, as the case
may be, at such time on the basis of the Spot Rate (determined
in respect of the
most recent Revaluation Date) for the purchase of Dollars with
such Alternative
Currency.
"Domestic Subsidiary" means any Subsidiary of the Company that
is not a
Foreign Subsidiary.
"EBIT" means, for any period, for the Company and its
Subsidiaries on a
consolidated basis, determined in accordance with GAAP, the sum
of (a)
Consolidated Net Income for such period plus (b) all amounts
treated as expenses
for interest plus (c) all accrued taxes plus (d) the
9
<PAGE>
interest component with respect to Off Balance Sheet
Obligations, in each case
to the extent included in the determination of such Consolidated
Net Income.
"EBITDA" means, for any period, for the Company and its
Subsidiaries on a
consolidated basis, determined in accordance with GAAP, the sum
of (a) EBIT plus
(b) all amounts treated as expenses for depreciation or the
amortization of
intangibles of any kind to the extent included in the
determination of
Consolidated Net Income, provided that in the event of the
occurrence of any
Acquisition or Disposition during such period, EBITDA shall be
calculated on a
pro forma basis as if such Acquisition or Disposition occurred
on the first day
of the relevant period such that, in the case of an Acquisition,
all income and
expense associated with the assets or entity acquired in
connection with such
Acquisition for the most recently ended four fiscal quarter
period for which
such income and expense amounts are available shall be treated
as earned or
incurred by the Company over the applicable period and, in the
case of a
Disposition, all income and expense associated with the assets
or entity sold or
transferred during such period shall be eliminated over the
applicable period.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; and
(c) any other Person (other than a natural person) approved by
(i) the
Administrative Agent, the L/C Issuer and the Swing Line Lender,
and (ii) unless
an Event of Default under Section 8.01(f) or 8.01(g) has
occurred and is
continuing, or an Event of Default under Section 8.01(a) has
occurred and is
continuing for 20 days or more, the Company (each such approval
not to be
unreasonably withheld or delayed); provided that,
notwithstanding the foregoing,
(x) any assignment to a Person that is not a commercial bank
shall not become
effective without the consent of the Company if, after giving
effect thereto,
such Person and its Affiliates would collectively hold more than
20% of the
Total Outstandings, (y) "Eligible Assignee" shall not include
the Company or any
of the Company's Affiliates or Subsidiaries; and (z) prior to
termination of the
Commitments, an Eligible Assignee shall include only a Lender,
an Affiliate of a
Lender or another Person, which, through its Lending Offices, is
capable of
lending the applicable Alternative Currencies to the Company
without the
imposition of any Taxes or additional Taxes, as the case may be.
The Company's
withholding of consent to an assignment, to the extent its
consent is required
above, shall not be deemed unreasonable if the assignee is not a
commercial
bank, savings and loan association or savings bank having a
combined capital and
surplus of $200,000,000.
"EMU" means the economic and monetary union in accordance with
the Treaty
of Rome 1957, as amended by the Single European Act 1986, the
Maastricht Treaty
of 1992 and the Amsterdam Treaty of 1998.
"EMU Legislation" means the legislative measures of the European
Council
for the introduction of, changeover to or operation of a single
or unified
European currency.
"Environmental Claims" means all claims, however asserted, by
any
Governmental Authority or other Person alleging potential
liability or
responsibility for violation of any Environmental Law, or for
release or injury
to the environment.
"Environmental Laws" means all federal, state or local laws,
statutes,
common law duties, rules, regulations, ordinances and codes,
together with all
administrative orders, directed
10
<PAGE>
duties, requests, licenses, authorizations and permits of, and
agreements with,
any Governmental Authorities, in each case relating to
environmental, health,
safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of
1974, and all
rules and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or
not
incorporated) under common control with the Company within the
meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o)
of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan;
(b) a withdrawal by the Company or any ERISA Affiliate from a
Pension Plan
subject to Section 4063 of ERISA during a plan year in which it
was a
substantial employer (as defined in Section 4001(a)(2) of ERISA)
or a cessation
of operations which is treated as such a withdrawal under
Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or
any ERISA
Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to
terminate, the
treatment of a Plan amendment as a termination under Section
4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to
terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which
might reasonably be
expected to constitute grounds under Section 4042 of ERISA for
the termination
of, or the appointment of a trustee to administer, any Pension
Plan or
Multiemployer Plan; or (f) the imposition of any liability under
Title IV of
ERISA, other than PBGC premiums due but not delinquent under
Section 4007 of
ERISA, upon the Company or any ERISA Affiliate.
"Euro" and "EUR" means the lawful currency of the Participating
Member
States introduced in accordance with EMU legislation.
"Eurocurrency Base Rate" has the meaning specified in the
definition of
"Eurocurrency Rate".
"Eurocurrency Bid Margin" means the margin above or below the
Eurocurrency
Base Rate to be added to or subtracted from the Eurocurrency
Base Rate, which
margin shall be expressed in multiples of 1/100th of one basis
point.
"Eurocurrency Margin Bid Loan" means a Bid Loan that bears
interest at a
rate based upon the Eurocurrency Base Rate. All Eurocurrency
Margin Bid Loans
must be denominated in Dollars.
"Eurocurrency Rate" means for any Interest Period with respect
to a
Eurocurrency Rate Loan, a rate per annum determined by the
Administrative Agent
pursuant to the following formula:
Eurocurrency Base Rate
Eurocurrency Rate = -------------------------------------
1.00 - Eurocurrency Reserve Percentage
Where,
11
<PAGE>
"Eurocurrency Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the British Bankers
Association
LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially
available source providing quotations of BBA LIBOR as designated
by the
Administrative Agent from time to time) at approximately 11:00
a.m.,
London time, two Business Days prior to the commencement of such
Interest
Period, for deposits in the relevant currency (for delivery on
the first
day of such Interest Period) with a term equivalent to such
Interest
Period; or
(b) if such rate is not available at such time for any
reason,
then the "Eurocurrency Base Rate" for such Interest Period shall
be the
rate per annum determined by the Administrative Agent to be the
rate at
which deposits in the relevant currency for delivery on the
first day of
such Interest Period in Same Day Funds in the approximate amount
of the
Eurocurrency Rate Loan being made, continued or converted by
Bank of
America (or, in the case of a Bid Loan, the applicable Bid Loan
Lender)
and with a term equivalent to such Interest Period would be
offered by
Bank of America's (or such Bid Loan Lender's) London Branch (or
other
Bank of America branch or Affiliate) to major banks in the
London or
other offshore interbank market for such currency at their
request at
approximately 11:00 a.m. (London time) two Business Days prior
to (or, in
the case of Eurocurrency Rate Loans denominated in Sterling, the
same
Business Day as) the commencement of such Interest Period;
or
(c) for any Interest Period with respect to any Eurocurrency
Rate
Loan advanced by a Lender required to comply with the
relevant
requirements of the Bank of England and the Financial Services
Authority
of the United Kingdom, the sum of (i) the rate determined in
accordance
with clauses (a) or (b) of this definition and (ii) the
Mandatory Cost
for such Interest Period.
"Eurocurrency Reserve Percentage" means, for any day during
any
Interest Period, the reserve percentage (expressed as a decimal,
carried
out to five decimal places) in effect on such day, whether or
not
applicable to any Lender, under regulations issued from time to
time by
the FRB for determining the maximum reserve requirement
(including any
emergency, supplemental or other marginal reserve requirement)
with
respect to Eurocurrency funding (currently referred to as
"Eurocurrency
liabilities"). The Eurocurrency Rate for each outstanding
Eurocurrency
Rate Loan shall be adjusted automatically as of the effective
date of any
change in the Eurocurrency Reserve Percentage.
"Eurocurrency Rate Committed Loan" means a Committed Loan that
bears
interest at a rate based on the Eurocurrency Rate. Eurocurrency
Rate Committed
Loans may be denominated in Dollars or in an Alternative
Currency. All
Committed Loans denominated in an Alternative Currency must be
Eurocurrency
Rate Committed Loans.
"Eurocurrency Rate Loan" means a Eurocurrency Rate Committed
Loan or a
Eurocurrency Margin Bid Loan.
"Event of Default" has the meaning specified in Section
8.01.
12
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations
promulgated thereunder, in each case, as amended from time to
time.
"Excluded Taxes" means, with respect to the Administrative
Agent, any
Lender, the L/C Issuer or any other recipient of any payment to
be made by or on
account of any obligation of the Company hereunder, (a) taxes
imposed on or
measured by its net income (however denominated), and franchise
taxes imposed on
it (in lieu of net income taxes), by the jurisdiction (or any
political
subdivision thereof) under the laws of which such recipient is
organized or in
which its principal office is located or, in which such Lender
maintains a
lending office, (b) any branch profits taxes imposed by the
United States or any
similar tax imposed by any other jurisdiction in which the
Company is located
and (c) in the case of a Lender (other than an assignee pursuant
to a request by
the Company under Section 10.13), any withholding tax that is
imposed on amounts
payable to such Lender at the time such Lender becomes a party
hereto (or
designates a new Lending Office) or is attributable to such
Lender's failure or
inability (other than as a result of a Change in Law) to comply
with Section
3.01(e), except to the extent that such Lender (or its assignor,
if any) was
entitled, at the time of designation of a new Lending Office (or
assignment), to
receive additional amounts from the Company with respect to such
withholding tax
pursuant to Section 3.01(a).
"Existing Credit Agreement" means that certain Credit Agreement
among the
Company, Bank of America, as administrative agent, and the other
financial
institutions party thereto, dated June 8, 2001 (as the same have
been amended
and modified from time to time).
"Existing Letters of Credit" has the meaning specified in
Section
2.04(a)(i).
"Existing Receivables Purchase Facility" means the receivables
financing
program providing for the sale or contribution of Accounts
Receivable by the
Company and its Participating Subsidiaries directly or
indirectly to the
Receivables Subsidiary pursuant to that certain Receivables
Purchase Agreement
dated as of December 20, 2001 among the Receivables Subsidiary,
the Company,
Falcon Asset Securitization Corporation, and the several
financial institutions
named therein (including any administrative, clerical or other
immaterial
amendments from time to time), and the securitization financing
transaction
related thereto or described therein.
"Federal Funds Rate" means, for any day, the rate per annum
equal to the
weighted average of the rates on overnight Federal funds
transactions with
members of the Federal Reserve System arranged by Federal funds
brokers on such
day, as published by the Federal Reserve Bank of New York on the
Business Day
next succeeding such day; provided that (a) if such day is not a
Business Day,
the Federal Funds Rate for such day shall be such rate on such
transactions on
the next preceding Business Day as so published on the next
succeeding Business
Day, and (b) if no such rate is so published on such next
succeeding Business
Day, the Federal Funds Rate for such day shall be the average
rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of
America on such day on such transactions as determined by the
Administrative
Agent.
"Fee Letters" means the BofA Fee Letter and the Wachovia Fee
Letter.
13
<PAGE>
"Foreign Lender" means any Lender that is not a U.S. person
within the
meaning of Section 7701(a)(30) of the Code.
"Foreign Subsidiary" means any Subsidiary of the Company that
(A) is
incorporated under the laws of a jurisdiction other than any
State of the U.S.,
the District of Columbia or any territory, commonwealth or
possession of the
U.S. and (B) maintains the major portion of its assets outside
the U.S.
"FRB" means the Board of Governors of the Federal Reserve System
of the
United States, and any Governmental Authority succeeding to any
of its principal
functions.
"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 generally accepted accounting principles set forth
from time
to time in the opinions and pronouncements of the Accounting
Principles Board
and the American Institute of Certified Public Accountants and
statements and
pronouncements of the Financial Accounting Standards Board (or
agencies with
similar functions of comparable stature and authority within the
U.S. accounting
profession), which are applicable to the circumstances as of (a)
in the case of
any computation pursuant to Section 7.15, the date of this
Agreement and (b) in
all other cases, the applicable date.
"Governmental Authority" means the government of the United
States or any
other nation, or of any political subdivision thereof, whether
state or local,
and any agency, authority, instrumentality, regulatory body,
court, central bank
or other entity exercising executive, legislative, judicial,
taxing, regulatory
or administrative powers or functions of or pertaining to
government (including
any supra-national bodies such as the European Union or the
European Central
Bank).
"Granting Lender" has the meaning specified in Section
10.06(h).
"Guaranty Obligation" has the meaning specified in the
definition of
"Contingent Obligation."
"Indebtedness" of any Person means, without duplication, (a)
all
indebtedness for borrowed money; (b) all obligations issued,
undertaken or
assumed as the deferred purchase price of property or services
(other than trade
payables entered into in the ordinary course of business on
ordinary terms); (c)
all non-contingent reimbursement or payment obligations with
respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds,
debentures or
similar instruments, including obligations so evidenced incurred
in connection
with the acquisition of property, assets or businesses; (e) all
indebtedness
created or arising under any conditional sale or other title
retention
agreement, or incurred as financing, in either case with respect
to property
acquired by the Person (even though the rights and remedies of
the seller or
bank under such agreement in the event of default are limited to
repossession or
sale of such property); (f) all Capital Lease Obligations and
Off Balance Sheet
Obligations including all Receivables Facility Attributed
Indebtedness; (g) all
indebtedness referred to in subsections (a) through (f) above
secured by (or for
which the holder of such Indebtedness has an existing right,
14
<PAGE>
contingent or otherwise, to be secured by) any Lien upon or in
property
(including accounts and contracts rights) owned by such Person,
even though such
Person has not assumed or become liable for the payment of such
Indebtedness;
and (h) all Guaranty Obligations in respect of indebtedness or
obligations of
others of the kinds referred to in subsections (a) through (g)
above. In the
event any of the foregoing Indebtedness is limited to recourse
against a
particular asset or assets of such Person, the amount of the
corresponding
Indebtedness shall be equal to the lesser of the amount of such
Indebtedness and
the fair market value of such asset or assets at the date for
determination of
the amount of such Indebtedness. In addition, the amount of any
Indebtedness
which is also a Contingent Obligation shall be determined as
provided in the
definition of "Contingent Obligation."
For all purposes of this Agreement, the Indebtedness of any
Person shall
include all Indebtedness of any partnership or Joint Venture or
limited
liability company in which such Person is a general partner or a
joint venturer
or a member, but in any such case, only to the extent any such
Indebtedness is
recourse to such Person. The amount of any Capital Lease or Off
Balance Sheet
Obligation as of any date shall be deemed to be the amount of
Attributable
Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnified Person" has the meaning specified in Section
10.04(b).
"Independent Auditor" has the meaning specified in Section
6.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a)
any case,
action or proceeding with respect to such Person before any
court or other
Governmental Authority relating to Debtor Relief Laws or (b) any
general
assignment for the benefit of creditors, composition,
marshalling of assets for
creditors, or other, similar arrangement in respect of its
creditors generally
or any substantial portion of its creditors, undertaken under
Debtor Relief
Laws.
"Intercompany Indebtedness" means Indebtedness of the Company or
any of
its Subsidiaries which, in the case of the Company, is owing to
any Subsidiary
of the Company and which, in the case of any Subsidiary, is
owing to the Company
or any of the Company's other Subsidiaries.
"Interest Coverage Ratio" means, as of any date of
determination, the
ratio of EBITDA for the period of the four prior fiscal quarters
ending on such
date to Consolidated Interest Expense for such period.
"Interest Payment Date" means, (a) as to any Loan other than a
Base Rate
Loan, the last day of each Interest Period applicable to such
Loan and the
Maturity Date; provided, however, that if any Interest Period
for a Eurocurrency
Rate Loan exceeds three months, the respective dates that fall
every three
months after the beginning of such Interest Period shall also be
Interest
Payment Dates; and (b) as to any Base Rate Loan (including a
Swing Line Loan),
the last Business Day of each March, June, September and
December and the
Maturity Date.
15
<PAGE>
"Interest Period" means (a) as to each Eurocurrency Rate Loan,
the period
commencing on the date such Eurocurrency Rate Loan is disbursed
or (in the case
of any Eurocurrency Rate Committed Loan) converted to or
continued as a
Eurocurrency Rate Loan and ending on the date one, two, three or
six months
thereafter, as selected by the Company in its Committed Loan
Notice or Bid
Request, as the case may be, or, in the case of Eurocurrency
Rate Committed
Loans, nine or twelve months if requested by the Company and
consented to by all
the Lenders; and (b) as to each Absolute Rate Loan, a period of
not less than 7
days and not more than 183 days as selected by the Company in
its Bid Request;
provided that:
(i) any Interest Period that would otherwise end on a day that
is
not a Business Day shall be extended to the next succeeding
Business Day
unless such Business Day falls in another calendar month, in
which case
such Interest Period shall end on the next preceding Business
Day;
(ii) any Interest Period that begins on the last Business Day of
a
calendar month (or on a day for which there is no
numerically
corresponding day in the calendar month at the end of such
Interest
Period) shall end on the last Business Day of the calendar month
at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity
Date.
"Inventory" means, inclusively, all inventory as defined in the
Uniform
Commercial Code in effect in the State of Illinois from time to
time and all
goods, merchandise and other personal property wherever located,
now owned or
hereafter acquired by the Company or any of its Subsidiaries of
every kind or
description which are held for sale or lease or are furnished or
to be furnished
under a contract of service or are raw materials,
work-in-process or materials
used or consumed or to be used or consumed in the Company's or
any of its
Subsidiaries' business.
"Investments" has the meaning specified in Section 7.04.
"IRS" means the Internal Revenue Service, and any Governmental
Authority
succeeding to any of its principal functions under the Code.
"ISP" means, with respect to any Letter of Credit, the
"International
Standby Practices 1998" published by the Institute of
International Banking Law
& Practice (or such later version thereof as may be in
effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit,
the Letter
of Credit Application, and any other document, agreement and
instrument entered
into by the L/C Issuer and the Company (or any Subsidiary) or in
favor the L/C
Issuer and relating to any such Letter of Credit.
"Joint Venture" means a single-purpose corporation, partnership,
limited
liability company, joint venture or other similar legal
arrangement (whether
created by contract or conducted through a separate legal
entity) now or
hereafter formed by the Company or any of its Subsidiaries with
another Person
in order to conduct a common venture or enterprise with such
Person.
16
<PAGE>
"L/C Advance" means, with respect to each Lender, such Lender's
funding of
its participation in any L/C Borrowing in accordance with its
Applicable
Percentage. All L/C Advances shall be denominated in
Dollars.
"L/C Borrowing" means an extension of credit resulting from a
drawing
under any Letter of Credit which has not been reimbursed on the
date when made
or refinanced as a Committed Borrowing. All L/C Borrowings shall
be denominated
in Dollars.
"L/C Credit Extension" means, with respect to any Letter of
Credit, the
issuance thereof or extension of the expiry date thereof, or the
increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of
Letters of
Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C Obligations" means, as at any date of determination, the
aggregate
amount available to be drawn under all outstanding Letters of
Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C
Borrowings. For
purposes of computing the amount available to be drawn under any
Letter of
Credit, the amount of such Letter of Credit shall be determined
in accordance
with Section 1.09. For all purposes of this Agreement, if on any
date of
determination a Letter of Credit has expired by its terms but
any amount may
still be drawn thereunder by reason of the operation of Rule
3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the
amount so
remaining available to be drawn.
"Laws" means, collectively, all international, foreign, federal,
state and
local statutes, treaties, rules, guidelines, regulations,
ordinances, codes and
administrative or judicial precedents or authorities, including
the
interpretation or administration thereof by any Governmental
Authority charged
with the enforcement, interpretation or administration thereof,
and all
applicable administrative orders, licenses, authorizations and
permits of, and
agreements with, any Governmental Authority, in each case
whether or not having
the force of law.
"Lender" has the meaning specified in the introductory paragraph
hereto
and, as the context requires, includes the Swing Line
Lender.
"Lending Office" means, as to any Lender, the office or offices
of such
Lender described as such in such Lender's Administrative
Questionnaire, or such
other office or offices as a Lender may from time to time notify
the Company and
the Administrative Agent.
"Letter of Credit" means any letter of credit issued hereunder
and shall
include the Existing Letters of Credit. A Letter of Credit may
be a commercial
letter of credit or a standby letter of credit. Letter of Credit
may be issued
in Dollars or in an Alternative Currency.
"Letter of Credit Application" means an application and
agreement for the
issuance or amendment of a Letter of Credit in the form from
time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven
days prior
to the Maturity Date then in effect (or, if such day is not a
Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section
2.04(i).
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"Letter of Credit Sublimit" means an amount equal to
$50,000,000. The
Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate
Commitments.
"Leverage Ratio" means, as of any date of determination, for the
Company
and its Subsidiaries, the ratio of (a) Consolidated Debt as of
such date to (b)
EBITDA for the period of the four fiscal quarters ending on such
date.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit
arrangement, encumbrance, lien (statutory or other), charge, or
preference,
priority or other security interest or preferential arrangement
in the nature of
a security interest of any kind or nature whatsoever (including
any conditional
sale or other title retention agreement, any easement, right of
way or other
encumbrance on title to real property, and any financing lease
having
substantially the same economic effect as any of the foregoing),
but, in any
such case, not including the interest of a lessor under an
operating lease which
does not constitute Off Balance Sheet Obligations or the
interest of a purchaser
of Accounts Receivable under any Permitted Receivables Purchase
Facility.
"Loan" means an extension of credit by a Lender to the Company
under
Article II in the form of a Committed Loan, a Bid Loan or a
Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each Issuer
Document and
the Fee Letters.
"Mandatory Cost" means, with respect to any period, the
percentage rate
per annum determined in accordance with Schedule 1.01.
"Margin Stock" means "margin stock" as such term is defined in
Regulation
T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change
in, or a
material adverse effect upon, the operations, business,
properties, or financial
condition of the Company and its Subsidiaries taken as a whole;
(b) a material
impairment of the ability of the Company and its Subsidiaries to
perform under
any material Loan Document; or (c) a material adverse effect
upon the legality,
validity, binding effect or enforceability against the Company
or any Subsidiary
of any material Loan Document.
"Material Subsidiary" means, at any time, any Subsidiary having
at such
time total assets, as of the last day of the preceding fiscal
quarter, having a
net book value in excess of 10% of Consolidated Total Assets,
based upon the
Company's most recent annual or quarterly financial statements
delivered to the
Administrative Agent under Section 6.01.
"Maturity Date" means December 14, 2009.
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto.
"Multiemployer Plan" means any employee benefit plan of the
type
described in Section 4001(a)(3) of ERISA, to which the Company
or any ERISA
Affiliate makes, is making, or is
18
<PAGE>
obligated to make contributions or, during the preceding three
calendar years,
has made, or been obligated to make, contributions.
"Note" means a promissory note made by the Company in favor of a
Lender
evidencing Loans made by such Lender, substantially in the form
of Exhibit D.
"Obligations" means all advances to, and debts, liabilities,
obligations,
covenants and duties of, the Company arising under any Loan
Document or
otherwise with respect to any Loan or Letter of Credit, whether
direct or
indirect (including those acquired by assumption), absolute or
contingent, due
or to become due, now existing or hereafter arising and
including interest and
fees that accrue after the commencement by or against the
Company or any
Affiliate thereof of any proceeding under any Debtor Relief Laws
naming such
Person as the debtor in such proceeding, regardless of whether
such interest and
fees are allowed claims in such proceeding.
"OFAC" means the U.S. Department of the Treasury's Office of
Foreign
Assets Control.
"Off Balance Sheet Obligation" means the monetary obligation of
a Person
under (a) a so-called synthetic, off-balance sheet or tax
retention lease, (b)
an agreement for the use or possession of property creating
obligations that do
not appear on the balance sheet of such Person but which, upon
the insolvency or
bankruptcy of such Person, would be characterized as the
indebtedness of such
Person (without regard to accounting treatment), or (c)
Attributable
Indebtedness and other obligations in respect of a Permitted
Receivables
Purchase Facility. The interest component of Off Balance Sheet
Obligations shall
mean in the case of a lease, those monetary obligations which
would, in
accordance with GAAP, be treated as interest if such lease was a
Capital Lease,
and in all other cases shall be the amount which would be
characterized as
interest upon the insolvency or bankruptcy of such Person
(assuming, for
purposes of any Permitted Receivables Purchase Facility, that
such sale does not
constitute a true sale).
"Organization Documents" means, for any corporation, the
certificate or
articles of incorporation, the bylaws, any certificate of
determination or
instrument relating to the rights of preferred shareholders of
such corporation,
any shareholder rights agreement, and all applicable resolutions
of the board of
directors (or any committee thereof) of such corporation.
"Other Taxes" means any present or future stamp, court or
documentary
taxes or any other excise or property taxes, charges or similar
levies which
arise from any payment made hereunder or from the execution,
delivery,
performance, enforcement or registration of, or otherwise with
respect to, this
Agreement or any other Loan Documents.
"Outstanding Amount" means (i) with respect to Committed Loans
on any
date, the Dollar Equivalent amount of the aggregate outstanding
principal amount
thereof after giving effect to any borrowings and prepayments or
repayments of
such Committed Loans occurring on such date; (ii) with respect
to Swing Line
Loans on any date, the aggregate outstanding principal amount
thereof after
giving effect to any borrowings and prepayments or repayments of
such Swing Line
Loans occurring on such date; and (iii) with respect to any L/C
Obligations on
any date, the Dollar Equivalent amount of the aggregate
outstanding amount of
such L/C Obligations on such date after giving effect to any L/C
Credit
Extension occurring on such date and any other
19
<PAGE>
changes in the aggregate amount of the L/C Obligations as of
such date,
including as a result of any reimbursements by the Company of
Unreimbursed
Amounts.
"Overnight Rate" means, for any day, (a) with respect to any
amount
denominated in Dollars, the greater of (i) the Federal Funds
Rate and (ii) an
overnight rate determined by the Administrative Agent, the L/C
Issuer, or the
Swing Line Lender, as the case may be, in accordance with
banking industry rules
on interbank compensation, and (b) with respect to any amount
denominated in an
Alternative Currency, the rate of interest per annum at which
overnight deposits
in the applicable Alternative Currency, in an amount
approximately equal to the
amount with respect to which such rate is being determined,
would be offered for
such day by a branch or Affiliate of Bank of America in the
applicable offshore
interbank market for such currency to major banks in such
interbank market.
"Participant" has the meaning specified in Section 10.06(d).
"Participating Member State" means each state so described in
any EMU
Legislation.
"Participating Subsidiary" means any Subsidiary of the Company
that is a
participant in any Permitted Receivables Purchase Facility.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental
Authority succeeding to any of its principal functions under
ERISA.
"Pension Plan" means any "employee pension benefit plan" (as
such term is
defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by
the Company or
any ERISA Affiliate or to which the Company or any ERISA
Affiliate contributes
or has an obligation to contribute, or in the case of a multiple
employer plan
(as described in Section 4064(a) of ERISA) has made
contributions at any time
during the immediately preceding five plan years.
"Permitted Acquisition" means any Acquisition by the Company or
a
Subsidiary of the Company if all of the following conditions are
met:
(a) no Default or Event of Default has occurred and is
continuing
or would result therefrom;
(b) if the Person to be acquired would be a Material
Subsidiary
of the Company upon completion of the Acquisition or if the
assets to be
acquired have a net book value in excess of 10% of Consolidated
Total
Assets, based upon the Company's most recent annual or
quarterly
financial statements delivered to the Administrative Agent under
Section
6.01, then prior to the consummation of such Acquisition, the
Company
shall provide to the Administrative Agent pro forma financial
statements
and projections for the Company on a consolidated basis giving
effect to
such Acquisition and demonstrating pro forma compliance with
Section 7.15
(without giving effect to any cost savings) for the period of
four fiscal
quarters ending with the fiscal quarter for which financial
statements
have most recently been delivered (or were required to be
delivered)
under Section 6.01, all in such detail as shall be
reasonably
satisfactory to the Administrative Agent; and
20
<PAGE>
(c) the prior, effective written consent or approval of such
Acquisition by the board of directors or equivalent governing
body of the
acquiree is obtained.
"Permitted Liens" has the meaning specified in Section 7.01.
"Permitted Receivables Purchase Facility" means any receivables
financing
program providing for the sale or contribution of Accounts
Receivable by the
Company and its Participating Subsidiaries directly or
indirectly to the
Receivables Subsidiary in transactions purporting to be sales
(and treated as
sales for GAAP purposes), which Receivables Subsidiary shall
finance the
purchase of such Accounts Receivable by the sale, transfer,
conveyance, lien or
pledge of such Accounts Receivable to one or more limited
purpose financing
companies, special purpose entities and/or other financial
institutions, in each
case, on a basis that does not provide, directly or indirectly,
for recourse
against the seller of such Accounts Receivable (or against any
of such seller's
Affiliates other than the Receivables Subsidiary) by way of a
guaranty or any
other support arrangement, with respect to the amount of such
Accounts
Receivable (based on the financial condition or circumstances of
the obligor
thereunder), other than such limited recourse as is reasonable
given market
standards for transactions of a similar type, taking into
account such factors
as historical bad debt loss experience and obligor concentration
levels;
provided that any such transaction described in the foregoing
clause shall be
consummated pursuant to documentation in form and substance
reasonably
satisfactory to Agent, as evidenced by its written approval
thereof. The
Existing Receivables Purchase Facility shall be deemed to be a
Permitted
Receivables Purchase Facility.
"Permitted Swap Obligations" means all obligations (contingent
or
otherwise) of the Company or any Subsidiary existing or arising
under Swap
Contracts, provided that each of the following criteria is
satisfied: (a) such
obligations are (or were) entered into by such Person in the
ordinary course of
business for the purpose of directly mitigating risks associated
with
liabilities, commitments or assets held or reasonably
anticipated by such
Person, or changes in the value of securities issued by such
Person in
conjunction with a securities repurchase program not otherwise
prohibited
hereunder, and not for purposes of speculation or taking a
"market view;" and
(b) such Swap Contracts do not contain any provision
("walk-away" provision)
exonerating the non-defaulting party from its obligation to make
payments on
outstanding transactions to the defaulting party.
"Person" means any natural person, corporation, limited
liability company,
trust, joint venture, association, company, partnership,
Governmental Authority
or other entity.
"Plan" means an employee benefit plan (as defined in Section
3(3) of
ERISA) which the Company or an ERISA Affiliate sponsors or
maintains or to which
the Company or an ERISA Affiliate makes, is making, or is
obligated to make
contributions and includes any Pension Plan.
"Receivables Facility Attributed Indebtedness" at any time shall
mean the
aggregate net outstanding amount theretofore paid to the
Receivables Subsidiary
in respect of the Accounts Receivable sold or transferred by it
in connection
with a Permitted Receivables Purchase Facility (it being the
intent of the
parties that the amount of Receivables Facility Attributed
Indebtedness at any
time outstanding approximate as closely as possible the
principal amount of
Indebtedness
21
<PAGE>
which would be outstanding at such time under such Permitted
Receivables
Purchase Facility if the same were structured as a secured
lending agreement
rather than a purchase agreement).
"Receivables Subsidiary" means IDEX Receivables Corporation and
any other
special purpose, bankruptcy remote Wholly-Owned Subsidiary of
the Company which
may be formed for the sole and exclusive purpose of engaging in
activities in
connection with the purchase, sale and financing of Accounts
Receivable in
connection with and pursuant to a Permitted Receivables Purchase
Facility.
"Refinancing Indebtedness" means Indebtedness incurred to
refinance other
Indebtedness as long as such refinancing does not (i) result in
an increase in
the total principal amount thereof by an amount in excess of
accrued interest,
call premiums and expenses incurred in connection with such
refinancing or (ii)
create Indebtedness with a weighted average life to maturity
that is less than
the weighted average life to maturity of the Indebtedness being
refinanced or
shorten the final maturity of the Indebtedness being refinanced,
provided that
if such Indebtedness being refinanced is Indebtedness of the
Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the
Company.
"Related Parties" means, with respect to any Person, such
Person's
Affiliates and the partners, directors, officers, employees,
agents and advisors
of such Person and of such Person's Affiliates.
"Reportable Event" means, any of the events set forth in Section
4043(c)
of ERISA or the regulations thereunder, other than any such
event for which the
30-day notice requirement under ERISA has been waived in
regulations issued by
the PBGC.
"Request for Credit Extension" means (a) with respect to a
Borrowing,
conversion or continuation of Committed Loans, a Committed Loan
Notice, (b) with
respect to a Bid Loan, a Bid Request, (c) with respect to an L/C
Credit
Extension, a Letter of Credit Application, and (d) with respect
to a Swing Line
Loan, a Swing Line Loan Notice.
"Required Lenders" means, as of any date of determination,
Lenders having
more than 50% of the Aggregate Commitments or, if the commitment
of each Lender
to make Loans and the obligation of the L/C Issuer to make L/C
Credit Extensions
have been terminated pursuant to Section 8.02, Lenders holding
in the aggregate
more than 50% of the Total Outstandings (with the aggregate
amount of each
Lender's risk participation and funded participation in L/C
Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes
of this
definition); provided that the Commitment of, and the portion of
the Total
Outstandings held or deemed held by, any Defaulting Lender shall
be excluded for
purposes of making a determination of Required Lenders.
"Requirement of Law" means, as to any Person, any law (statutory
or
common), treaty, rule or regulation or determination of an
arbitrator or of a
Governmental Authority, in each case applicable to or binding
upon the Person or
any of its property or to which the Person or any of its
property is subject.
22
<PAGE>
"Responsible Officer" means the chief executive officer, the
chief
operating officer, the president, the chief financial officer,
the controller or
the treasurer of the Company, or any other officer having
substantially the same
authority and responsibility.
"Restricted Payment" has the meaning specified in Section
7.08.
"Revaluation Date" means (a) with respect to any Loan, each of
the
following: (i) each date of a Borrowing of a Eurocurrency Rate
Loan denominated
in an Alternative Currency, (ii) each date of a continuation of
a Eurocurrency
Rate Loan denominated in an Alternative Currency pursuant to
Section 2.02, and
(iii) such additional dates as the Administrative Agent shall
determine or the
Required Lenders shall require; and (b) with respect to any
Letter of Credit,
each of the following: (i) each date of issuance of a Letter of
Credit
denominated in an Alternative Currency, (ii) each date of an
amendment of any
such Letter of Credit having the effect of increasing the amount
thereof (solely
with respect to the increased amount), (iii) each date of any
payment by the L/C
Issuer under any Letter of Credit denominated in an Alternative
Currency, (iv)
in the case of the Existing Letters of Credit, the Closing Date,
and (v) such
additional dates as the Administrative Agent or the L/C Issuer
shall determine
or the Required Lenders shall require.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-
Hill Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any arrangement, directly
or
indirectly, whereby a seller or transferor shall sell or
otherwise transfer any
real or personal property and then or thereafter lease, or
repurchase under an
extended purchase contract, conditional sales or other title
retention
agreement, the same or similar property.
"Same Day Funds" means (a) with respect to disbursements and
payments in
Dollars, immediately available funds, and (b) with respect to
disbursements and
payments in an Alternative Currency, same day or other funds as
may be
determined by the Administrative Agent or the L/C Issuer, as the
case may be, to
be customary in the place of disbursement or payment for the
settlement of
international banking transactions in the relevant Alternative
Currency.
"SEC" means the Securities and Exchange Commission, or any
Governmental
Authority succeeding to any of its principal functions.
"SPC" has the meaning specified in Section 10.06(h).
"Special Notice Currency" means at any time an Alternative
Currency, other
than the currency of a country that is a member of the
Organization for Economic
Cooperation and Development at such time located in North
America or Europe.
"Spot Rate" for a currency means the rate determined by the
Administrative
Agent or the L/C Issuer, as applicable, to be the rate quoted by
the Person
acting in such capacity as the spot rate for the purchase by
such Person of such
currency with another currency through its principal foreign
exchange trading
office at approximately 10:00 a.m. on the date two Business Days
prior to the
date as of which the foreign exchange computation is made;
provided that the
23
<PAGE>
Administrative Agent or the L/C Issuer may obtain such spot rate
from another
financial institution designated by the Administrative Agent or
the L/C Issuer
if the Person acting in such capacity does not have as of the
date of
determination a spot buying rate for any such currency; and
provided further
that the L/C Issuer may use such spot rate quoted on the date as
of which the
foreign exchange computation is made in the case of any Letter
of Credit
denominated in an Alternative Currency.
"Sterling" and "{pound-sterling}" mean the lawful currency of
the United
Kingdom.
"Subordinated Debt" shall mean all unsecured Indebtedness of the
Company
for money borrowed which is subordinated in form and substance
to the
Obligations, and which has terms of payment, covenants and
remedies, all
satisfactory to the Required Lenders as evidenced by their
written approval
thereof.
"Subsidiary" of a Person means any corporation, association,
partnership,
limited liability company, joint venture or other business
entity of which more
than 50% of the securities, membership interests or other equity
interests
having ordinary voting power for the election of directors or
other governing
body are at the time beneficially owned or controlled directly
or indirectly by
the Person, or one or more of the Subsidiaries of the Person, or
a combination
thereof. Unless the context otherwise clearly requires,
references herein to a
"Subsidiary" refer to a Subsidiary of the Company.
"Surety Instruments" means all letters of credit (including
standby and
commercial), banker's acceptances, bank guaranties, shipside
bonds, surety bonds
and similar instruments.
"Swap Contract" means any agreement, whether or not in writing,
relating
to any transaction that is a rate swap, basis swap, forward rate
transaction,
commodity swap, commodity option, equity or equity index swap or
option, bond,
note or bill option, interest rate option, forward foreign
exchange transaction,
cap, collar or floor transaction, currency swap, cross-currency
rate swap,
swaption, currency option or any other, similar transaction
(including any
option to enter into any of the foregoing) or any combination of
the foregoing,
and, unless the context otherwise clearly requires, any master
agreement
relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap
Contracts, after taking into account the effect of any legally
enforceable
netting agreement relating to such Swap Contracts, (a) for any
date on or after
the date such Swap Contracts have been closed out and
termination value(s)
determined in accordance therewith, such termination value(s),
and (b) for any
date prior to the date referenced in subsection (a) the
amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as
determined by the
Company based upon one or more mid-market or other readily
available quotations
provided by any recognized dealer in such Swap Contracts (which
may include any
Lender).
"Swing Line" means the revolving credit facility made available
by the
Swing Line Lender pursuant to Section 2.05.
"Swing Line Borrowing" means a borrowing of a Swing Line Loan
pursuant to
Section 2.05.
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<PAGE>
"Swing Line Lender" means Bank of America in its capacity as
provider of
Swing Line Loans, or any successor swing line lender
hereunder.
"Swing Line Loan" has the meaning specified in Section
2.05(a).
"Swing Line Loan Notice" means a notice of a Swing Line
Borrowing pursuant
to Section 2.05(b), which, if in writing, shall be substantially
in the form of
Exhibit C.
"Swing Line Sublimit" means an amount equal to the lesser of
(a)
$25,000,000 and (b) the Aggregate Commitments. The Swing Line
Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Swiss Franc" means the lawful currency of Switzerland.
"TARGET Day" means any day on which the Trans-European Automated
Real-
time Gross Settlement Express Transfer (TARGET) payment system
(or, if such
payment system ceases to be operative, such other payment system
(if any)
determined by the Administrative Agent to be a suitable
replacement) is open for
the settlement of payments in Euro.
"Taxes" means all present or future taxes, levies, imposts,
duties,
deductions, withholdings, assessments, fees or other similar
charges imposed by
any Governmental Authority, including any interest, additions to
tax or
penalties applicable thereto not attributable to the gross
negligence or willful
misconduct of the Lender or Administrative Agent, as
applicable.
"Total Outstandings" means the aggregate Outstanding Amount of
all Loans
and all L/C Obligations.
"Type" means (a) with respect to a Committed Loan, its character
as a Base
Rate Loan or a Eurocurrency Rate Loan, and (b) with respect to a
Bid Loan, its
character as an Absolute Rate Loan or a Eurocurrency Margin Bid
Loan.
"Unfunded Pension Liability" means the excess of a Plan's
benefit
liabilities under Section 4001(a)(16) of ERISA, over the current
value of that
Plan's assets, determined in accordance with the assumptions
used for funding
the Pension Plan pursuant to Section 412 of the Code for the
applicable plan
year.
"United States" and "U.S." each means the United States of
America.
"Unreimbursed Amount" has the meaning specified in Section
2.04(c)(i).
"Wachovia Fee Letter" means the letter agreement, dated as of
November
15, 2004, between the Company and Wachovia Capital Markets
LLC.
"Wholly-Owned Subsidiary" means any corporation in which (other
than
directors' qualifying shares required by law) 100% of the
capital stock of each
class having ordinary voting power, and 100% of the capital
stock of every other
class, in each case, at the time as of which
25
<PAGE>
any determination is being made, is owned, beneficially and of
record, by the
Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
"Yen" and "(Y)" mean the lawful currency of Japan.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement
and each other Loan Document, unless otherwise specified herein
or in such
other Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular
and plural forms of the terms defined. Whenever the context may
require, any
pronoun shall include the corresponding masculine, feminine and
neuter forms.
The words "include," "includes" and "including" shall be deemed
to be followed
by the phrase "without limitation." The word "will" shall be
construed to have
the same meaning and effect as the word "shall." Unless the
context requires
otherwise, (i) any definition of or reference to any agreement,
instrument or
other document (including any Organization Document) shall be
construed as
referring to such agreement, instrument or other document as
from time to time
amended, supplemented or otherwise modified (subject to any
restrictions on
such amendments, supplements or modifications set forth herein
or in any other
Loan Document), (ii) any reference herein to any Person shall be
construed to
include such Person's successors and assigns, (iii) the words
"herein,"
"hereof" and "hereunder," and words of similar import when used
in any Loan
Document, shall be construed to refer to such Loan Document in
its entirety and
not to any particular provision thereof, (iv) all references in
a Loan Document
to Articles, Sections, Exhibits and Schedules shall be construed
to refer to
Articles and Sections of, and Exhibits and Schedules to, the
Loan Document in
which such references appear, (v) any reference to any law shall
include all
statutory and regulatory provisions consolidating, amending
replacing or
interpreting such law and any reference to any law or regulation
shall, unless
otherwise specified, refer to such law or regulation as amended,
modified or
supplemented from time to time, and (vi) the words "asset" and
"property" shall
be construed to have the same meaning and effect and to refer to
any and all
tangible and intangible assets and properties, including cash,
securities,
accounts and contract rights.
(b) In the computation of periods of time from a specified date
to a
later specified date, the word "from" means "from and
including;" the words
"to" and "until" each mean "to but excluding;" and the word
"through" means "to
and including."
(c) Section headings herein and in the other Loan Documents
are
included for convenience of reference only and shall not affect
the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) Generally. All accounting terms not specifically or
completely
defined herein shall be construed in conformity with, and all
financial data
(including financial ratios and other financial calculations)
required to be
submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP
applied on a consistent basis, as in effect from time to time,
applied in a
manner consistent with that used in preparing the Company's
audited financial
statements, except as otherwise specifically prescribed
herein.
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(b) Changes in GAAP. If at any time any change in GAAP would
affect
the computation of any financial ratio or requirement set forth
in any Loan
Document, and either the Company or the Required Lenders shall
so request, the
Administrative Agent, the Lenders and the Company shall
negotiate in good faith
to amend such ratio or requirement to preserve the original
intent thereof in
light of such change in GAAP (subject to the approval of the
Required Lenders);
provided that, until so amended, (i) such ratio or requirement
shall continue
to be computed in accordance with GAAP prior to such change
therein and (ii) in
the event of any request to negotiate to amend pursuant to this
Section, the
Company shall provide to the Administrative Agent and the
Lenders financial
statements and other documents required under this Agreement or
as reasonably
requested hereunder setting forth a reconciliation between
calculations of such
ratio or requirement made before and after giving effect to such
change in
GAAP.
1.04 EXCHANGE RATES; CURRENCY EQUIVALENTS.
(a) The Administrative Agent or the L/C Issuer, as applicable,
shall
determine the Spot Rates as of each Revaluation Date to be used
for calculating
Dollar Equivalent amounts of Credit Extensions and Outstanding
Amounts
denominated in Alternative Currencies. Such Spot Rates shall
become effective
as of such Revaluation Date and shall be the Spot Rates employed
in converting
any amounts between the applicable currencies until the next
Revaluation Date
to occur. Except for purposes of financial statements delivered
by the Company
hereunder or calculating financial covenants hereunder or except
as otherwise
provided herein, the applicable amount of any currency (other
than Dollars) for
purposes of the Loan Documents shall be such Dollar Equivalent
amount as so
determined by the Administrative Agent or the L/C Issuer, as
applicable.
(b) Wherever in this Agreement in connection with a
Committed
Borrowing, conversion, continuation or prepayment of a
Eurocurrency Rate Loan
or the issuance, amendment or extension of a Letter of Credit,
an amount, such
as a required minimum or multiple amount, is expressed in
Dollars, but such
Committed Borrowing, Eurocurrency Rate Loan or Letter of Credit
is denominated
in an Alternative Currency, such amount shall be the relevant
Alternative
Currency Equivalent of such Dollar amount (rounded to the
nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward),
as determined
by the Administrative Agent or the L/C Issuer, as the case may
be.
1.05 ADDITIONAL ALTERNATIVE CURRENCIES.
(a) The Company may from time to time request that Eurocurrency
Rate
Loans be made and/or Letters of Credit be issued in a currency
other than those
specifically listed in the definition of "Alternative Currency;"
provided that
such requested currency is a lawful currency (other than
Dollars) that is
readily available and freely transferable and convertible into
Dollars. In the
case of any such request with respect to the making of
Eurocurrency Rate Loans,
such request shall be subject to the approval of the
Administrative Agent and
each of the Lenders; and in the case of any such request with
respect to the
issuance of Letters of Credit, such request shall be subject to
the approval of
the Administrative Agent and the L/C Issuer.
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<PAGE>
(b) Any such request shall be made to the Administrative Agent
not
later than 10:00 a.m., 10 Business Days prior to the date of the
desired Credit
Extension (or such other time or date as may be agreed by the
Administrative
Agent and, in the case of any such request pertaining to Letters
of Credit, the
L/C Issuer, in its or their sole discretion). In the case of any
such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent
shall promptly
notify each Lender thereof; and in the case of any such request
pertaining to
Letters of Credit, the Administrative Agent shall promptly
notify the L/C
Issuer thereof. Each Lender (in the case of any such request
pertaining to
Eurocurrency Rate Loans) or the L/C Issuer (in the case of a
request pertaining
to Letters of Credit) shall notify the Administrative Agent, not
later than
10:00 a.m., ten Business Days after receipt of such request
whether it
consents, in its sole discretion, to the making of Eurocurrency
Rate Loans or
the issuance of Letters of Credit, as the case may be, in such
requested
currency.
(c) Any failure by a Lender or the L/C Issuer, as the case may
be, to
respond to such request within the time period specified in the
preceding
sentence shall be deemed to be a refusal by such Lender or the
L/C Issuer, as
the case may be, to permit Eurocurrency Rate Loans to be made or
Letters of
Credit to be issued in such requested currency. If the
Administrative Agent
and all the Lenders consent to making Eurocurrency Rate Loans in
such requested
currency, the Administrative Agent shall so notify the Company
and such
currency shall thereupon be deemed for all purposes to be an
Alternative
Currency hereunder for purposes of any Committed Borrowings of
Eurocurrency
Rate Loans; and if the Administrative Agent and the L/C Issuer
consent to the
issuance of Letters of Credit in such requested currency, the
Administrative
Agent shall so notify the Company and such currency shall
thereupon be deemed
for all purposes to be an Alternative Currency hereunder for
purposes of any
Letter of Credit issuances. If the Administrative Agent shall
fail to obtain
consent to any request for an additional currency under this
Section 1.05, the
Administrative Agent shall promptly so notify the Company.
1.06 CHANGE OF CURRENCY.
(a) Each obligation of the Company to make a payment denominated
in the
national currency unit of any member state of the European Union
that adopts
the Euro as its lawful currency after the date hereof shall be
redenominated
into Euro at the time of such adoption (in accordance with the
EMU
Legislation). If, in relation to the currency of any such member
state, the
basis of accrual of interest expressed in this Agreement in
respect of that
currency shall be inconsistent with any convention or practice
in the London
interbank market for the basis of accrual of interest in respect
of the Euro,
such expressed basis shall be replaced by such convention or
practice with
effect from the date on which such member state adopts the Euro
as its lawful
currency; provided that if any Committed Borrowing in the
currency of such
member state is outstanding immediately prior to such date, such
replacement
shall take effect, with respect to such Committed Borrowing, at
the end of the
then current Interest Period.
(b) Each provision of this Agreement shall be subject to
such
reasonable changes of construction as the Administrative Agent,
with the
consent of the Company (which consent shall not be unreasonably
withheld), may
from time to time specify to be appropriate to reflect the
adoption of the Euro
by any member state of the European Union and any relevant
market conventions
or practices relating to the Euro.
28
<PAGE>
(c) Each provision of this Agreement also shall be subject to
such
reasonable changes of construction as the Administrative Agent,
with the
consent of the Company (which consent shall not be unreasonably
withheld), may
from time to time specify to be appropriate to reflect a change
in currency of
any other country and any relevant market conventions or
practices relating to
the change in currency.
1.07 ROUNDING. Any financial ratios required to be maintained by
the
Company pursuant to this Agreement shall be calculated by
dividing the
appropriate component by the other component, carrying the
result to one place
more than the number of places by which such ratio is expressed
herein and
rounding the result up or down to the nearest number (with a
rounding-up if
there is no nearest number).
1.08 TIMES OF DAY. Unless otherwise specified, all references
herein to
times of day shall be references to Central time (daylight or
standard, as
applicable).
1.09 LETTER OF CREDIT AMOUNTS. Unless otherwise specified
herein, the
amount of a Letter of Credit at any time shall be deemed to be
the Dollar
Equivalent of the stated amount of such Letter of Credit in
effect at such
time; provided, however, that with respect to any Letter of
Credit that, by its
terms or the terms of any Issuer Document related thereto,
provides for one or
more automatic increases in the stated amount thereof, the
amount of such
Letter of Credit shall be deemed to be the Dollar Equivalent of
the maximum
stated amount of such Letter of Credit after giving effect to
all such
increases, whether or not such maximum stated amount is in
effect at such time.
ARTICLE II
THE CREDITS
2.01 COMMITTED LOANS. Subject to the terms and conditions set
forth
herein, each Lender severally agrees to make loans (each such
loan, a
"Committed Loan") to the Company in Dollars or in one or more
Alternative
Currencies from time to time, on any Business Day during the
Availability
Period, in an aggregate amount not to exceed at any time
outstanding the amount
of such Lender's Commitment; provided, however, that after
giving effect to any
Committed Borrowing, (i) the Total Outstandings shall not exceed
the Aggregate
Commitments, (ii) the aggregate Outstanding Amount of the
Committed Loans of
any Lender, plus such Lender's Applicable Percentage of the
Outstanding Amount
of all L/C Obligations, plus such Lender's Applicable Percentage
of the
Outstanding Amount of all Swing Line Loans shall not exceed such
Lender's
Commitment, and (iii) the aggregate Outstanding Amount of all
Committed Loans
denominated in Alternative Currencies shall not exceed the
Alternative Currency
Sublimit. Within the limits of each Lender's Commitment, and
subject to the
other terms and conditions hereof, the Company may borrow under
this Section
2.01, prepay under Section 2.06, and reborrow under this Section
2.01.
Committed Loans may be Base Rate Loans or Eurocurrency Rate
Loans, as further
provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED
LOANS.
(a) Each Committed Borrowing, each conversion of Committed Loans
from
one Type to the other, and each continuation of Eurocurrency
Rate Committed
Loans shall be made
29
<PAGE>
upon the Company's irrevocable notice to the Administrative
Agent, which may be
given by telephone. Each such notice must be received by the
Administrative
Agent not later than 10:00 a.m. (i) three Business Days prior to
the requested
date of any Borrowing of, conversion to or continuation of
Eurocurrency Rate
Committed Loans denominated in Dollars or of any conversion of
Eurocurrency Rate
Committed Loans denominated in Dollars to Base Rate Committed
Loans, (ii) four
Business Days (or five Business Days in the case of a Special
Notice Currency)
prior to the requested date of any Borrowing or continuation of
Eurocurrency
Rate Committed Loans denominated in Alternative Currencies, and
(iii) on the
requested date of any Borrowing of Base Rate Committed Loans;
provided, however,
that if the Company wishes to request Eurocurrency Rate
Committed Loans having
an Interest Period other than one, two, three or six months in
duration as
provided in the definition of "Interest Period," the applicable
notice must be
received by the Administrative Agent not later than 10:00 a.m.
(i) four Business
Days prior to the requested date of such Borrowing, conversion
or continuation
of Eurocurrency Rate Committed Loans denominated in Dollars, or
(ii) five
Business Days (or six Business Days in the case of a Special
Notice Currency)
prior to the requested date of such Borrowing, conversion or
continuation of
Eurocurrency Rate Committed Loans denominated in Alternative
Currencies,
whereupon the Administrative Agent shall give prompt notice to
the Lenders of
such request and determine whether the requested Interest Period
is acceptable
to all of them. Not later than 10:00 a.m., (i) three Business
Days before the
requested date of such Borrowing, conversion or continuation of
Eurocurrency
Rate Committed Loans denominated in Dollars, or (ii) four
Business Days (or five
Business Days in the case of a Special Notice Currency) prior to
the requested
date of such Borrowing, conversion or continuation of
Eurocurrency Rate
Committed Loans denominated in Alternative Currencies, the
Administrative Agent
shall notify the Company (which notice may be by telephone)
whether or not the
requested Interest Period has been consented to by all the
Lenders. Each
telephonic notice by the Company pursuant to this Section
2.02(a) must be
confirmed promptly by delivery to the Administrative Agent of a
written
Committed Loan Notice, appropriately completed and signed by a
Responsible
Officer of the Company. Each Borrowing of, conversion to or
continuation of
Eurocurrency Rate Committed Loans shall be in a principal amount
of $3,000,000
or a whole multiple of $1,000,000 in excess thereof. Except as
provided in
Sections 2.04(c) and 2.05(c), each Borrowing of or conversion to
Base Rate
Committed Loans shall be in a principal amount of $1,000,000 or
a whole multiple
of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or
written) shall specify (i) whether the Company is requesting a
Committed
Borrowing, a conversion of Committed Loans from one Type to the
other, or a
continuation of Eurocurrency Rate Committed Loans, (ii) the
requested date of
the Borrowing, conversion or continuation, as the case may be
(which shall be a
Business Day), (iii) the principal amount of Committed Loans to
be borrowed,
converted or continued, (iv) the Type of Committed Loans to be
borrowed or to
which existing Committed Loans are to be converted, (v) if
applicable, the
duration of the Interest Period with respect thereto, and (vi)
the currency of
the Committed Loans to be borrowed. If the Company fails to
specify a currency
in a Committed Loan Notice requesting a Borrowing, then the
Committed Loans so
requested shall be made in Dollars. If the Company fails to
specify a Type of
Committed Loan in a Committed Loan Notice or if the Company
fails to give a
timely notice requesting a conversion or continuation, then the
applicable
Committed Loans shall be made as, or converted to, Base Rate
Loans; provided,
however, that in the case of a failure to timely request a
continuation of
Committed Loans denominated in an Alternative Currency, such
Loans shall be
continued as Eurocurrency Rate Loans in their original
currency
30
<PAGE>
with an Interest Period of one month. Any such automatic
conversion to Base Rate
Loans shall be effective as of the last day of the Interest
Period then in
effect with respect to the applicable Eurocurrency Rate
Committed Loans. If the
Company requests a Borrowing of, conversion to, or continuation
of Eurocurrency
Rate Committed Loans in any such Committed Loan Notice, but
fails to specify an
Interest Period, it will be deemed to have specified an Interest
Period of one
month. No Committed Loan may be converted into or continued as a
Committed Loan
denominated in a different currency, but instead must be prepaid
in the original
currency of such Committed Loan and reborrowed in the other
currency.
(b) Following receipt of a Committed Loan Notice, the
Administrative
Agent shall promptly notify each Lender of the amount (and
currency) of its
Applicable Percentage of the applicable Committed Loans, and if
no timely
notice of a conversion or continuation is provided by the
Company, the
Administrative Agent shall notify each Lender of the details of
any automatic
conversion to Base Rate Loans or continuation of Committed Loans
denominated in
a currency other than Dollars, in each case as described in the
preceding
subsection. In the case of a Committed Borrowing, each Lender
shall make the
amount of its Committed Loan available to the Administrative
Agent in Same Day
Funds at the Administrative Agent's Office for the applicable
currency not
later than 12:00 noon, in the case of any Committed Loan
denominated in
Dollars, and not later than the Applicable Time specified by the
Administrative
Agent in the case of any Committed Loan in an Alternative
Currency, in each
case on the Business Day specified in the applicable Committed
Loan Notice.
Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and,
if such Borrowing is the initial Credit Extension, Section
4.01), the
Administrative Agent shall make all funds so received available
to the Company
in like funds as received by the Administrative Agent either by
(i) crediting
the account of the Company on the books of Bank of America with
the amount of
such funds or (ii) wire transfer of such funds, in each case in
accordance with
instructions provided to (and reasonably acceptable to) the
Administrative
Agent by the Company; provided, however, that if, on the date
the Committed
Loan Notice with respect to such Borrowing denominated in
Dollars is given by
the Company, there are L/C Borrowings outstanding, then the
proceeds of such
Borrowing, first, shall be applied to the payment in full of any
such L/C
Borrowings, and second, shall be made available to the Company
as provided
above.
(c) Except as otherwise provided herein, a Eurocurrency Rate
Committed
Loan may be continued or converted only on the last day of an
Interest Period
for such Eurocurrency Rate Committed Loan. During the existence
of a Default
(i) without the consent of the Required Lenders, (A) no Loans
denominated in
Dollars may be requested as, converted to or continued as
Eurocurrency Rate
Committed Loans and (B) no Loans denominated in an Alternative
Currency may be
requested as, converted to or continued as Eurocurrency Rate
Committed Loans on
the basis of an Interest Period exceeding one month and (ii) the
Required
Lenders may demand that any or all of the then outstanding
Eurocurrency Rate
Committed Loans denominated in an Alternative Currency be
redenominated into
Dollars in the amount of the Dollar Equivalent thereof, on the
last day of the
then current Interest Period with respect thereto.
(d) The Administrative Agent shall promptly notify the Company
and the
Lenders of the interest rate applicable to any Interest Period
for Eurocurrency
Rate Committed Loans upon determination of such interest rate.
At any time
that Base Rate Loans are outstanding, the Administrative Agent
shall notify the
Company and the Lenders of any change in Bank of
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<PAGE>
America's prime rate used in determining the Base Rate promptly
following the
public announcement of such change.
(e) After giving effect to all Committed Borrowings, all
conversions of
Committed Loans from one Type to the other, and all
continuations of Committed
Loans as the same Type, there shall not be more than ten
Interest Periods in
effect with respect to Committed Loans.
2.03 BID LOANS.
(a) General. Subject to the terms and conditions set forth
herein,
each Lender agrees that the Company may from time to time
request the Lenders
to submit offers to make loans in Dollars (each such loan, a
"Bid Loan") to the
Company prior to the Maturity Date pursuant to this Section
2.03; provided,
however, that after giving effect to any Bid Borrowing, (i) the
Total
Outstandings shall not exceed the Aggregate Commitments, and
(ii) the aggregate
Outstanding Amount of all Bid Loans shall not exceed the Bid
Loan Sublimit.
There shall not be more than ten different Interest Periods in
effect with
respect to Bid Loans at any time.
(b) Requesting Competitive Bids. The Company may request the
submission of Competitive Bids by delivering a Bid Request to
the
Administrative Agent not later than 11:00 a.m. (i) one Business
Day prior to
the requested date of any Bid Borrowing that is to consist of
Absolute Rate
Loans, or (ii) four Business Days prior to the requested date of
any Bid
Borrowing that is to consist of Eurocurrency Margin Bid Loans.
Each Bid
Request shall specify (i) the requested date of the Bid
Borrowing (which shall
be a Business Day), (ii) the aggregate principal amount of Bid
Loans requested
(which must be $5,000,000 or a whole multiple of $1,000,000 in
excess thereof),
(iii) the Type of Bid Loans requested, and (iv) the duration of
the Interest
Period with respect thereto, and shall be signed by a
Responsible Officer of
the Company. No Bid Request shall contain a request for (i) more
than one Type
of Bid Loan or (ii) Bid Loans having more than three different
Interest
Periods. Unless the Administrative Agent otherwise agrees in its
sole and
absolute discretion, the Company may not submit a Bid Request if
it has
submitted another Bid Request within the prior five Business
Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each Lender
of
each Bid Request received by it from the Company and the
contents of such
Bid Request.
(ii) Each Lender may (but shall have no obligation to) submit
a
Competitive Bid containing an offer to make one or more Bid
Loans in
response to such Bid Request. Such Competitive Bid must be
delivered to
the Administrative Agent not later than 8:30 a.m. (A) on the
requested
date of any Bid Borrowing that is to consist of Absolute Rate
Loans, and
(B) three Business Days prior to the requested date of any Bid
Borrowing
that is to consist of Eurocurrency Margin Bid Loans; provided,
however,
that any Competitive Bid submitted by Bank of America in its
capacity as
a Lender in response to any Bid Request must be submitted to
the
Administrative Agent not later than 8:15 a.m. on the date on
which
Competitive Bids are required to be delivered by the other
Lenders in
response to such Bid Request. Each Competitive Bid shall specify
(A) the
proposed date of the Bid Borrowing; (B) the principal amount of
each Bid
Loan for which such
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Competitive Bid is being made, which principal amount (x) may be
equal to,
greater than or less than the Commitment of the bidding Lender,
(y) must
be $5,000,000 or a whole multiple of $1,000,000 in excess
thereof, and (z)
may not exceed the principal amount of Bid Loans for which
Competitive
Bids were requested; (C) if the proposed Bid Borrowing is to
consist of
Absolute Rate Bid Loans, the Absolute Rate offered for each such
Bid Loan
and the Interest Period applicable thereto; (D) if the proposed
Bid
Borrowing is to consist of Eurocurrency Margin Bid Loans, the
Eurocurrency
Bid Margin with respect to each such Eurocurrency Margin Bid
Loan and the
Interest Period applicable thereto; and (E) the identity of the
bidding
Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is
received after the applicable time specified in subsection (ii)
above,
(B) is not substantially in the form of a Competitive Bid as
specified
herein, (C) contains qualifying, conditional or similar
language, (D)
proposes terms other than or in addition to those set forth in
the
applicable Bid Request, or (E) is otherwise not responsive to
such Bid
Request. Any Lender may correct a Competitive Bid containing a
manifest
error by submitting a corrected Competitive Bid (identified as
such) not
later than the applicable time required for submission of
Competitive
Bids. Any such submission of a corrected Competitive Bid
shall
constitute a revocation of the Competitive Bid that contained
the
manifest error. The Administrative Agent may, but shall not be
required
to, notify any Lender of any manifest error it detects in such
Lender's
Competitive Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03
and
4.02 and subsection (iii) above, each Competitive Bid shall
be
irrevocable.
(d) Notice to Company of Competitive Bids. Not later than 9:00
a.m.
(i) on the requested date of any Bid Borrowing that is to
consist of Absolute
Rate Loans, or (ii) three Business Days prior to the requested
date of any Bid
Borrowing that is to consist of Eurocurrency Margin Bid Loans,
the
Administrative Agent shall notify the Company of the identity of
each Lender
that has submitted a Competitive Bid that complies with Section
2.03(c) and of
the terms of the offers contained in each such Competitive
Bid.
(e) Acceptance of Competitive Bids. Not later than 9:30 a.m. (i)
on
the requested date of any Bid Borrowing that is to consist of
Absolute Rate
Loans, and (ii) three Business Days prior to the requested date
of any Bid
Borrowing that is to consist of Eurocurrency Margin Bid Loans,
the Company
shall notify the Administrative Agent of its acceptance or
rejection of the
offers notified to it pursuant to Section 2.03(d). The Company
shall be under
no obligation to accept any Competitive Bid and may choose to
reject all
Competitive Bids. In the case of acceptance, such notice shall
specify the
aggregate principal amount of Competitive Bids for each Interest
Period that is
accepted. The Company may accept any Competitive Bid in whole or
in part;
provided that:
(i) the aggregate principal amount of each Bid Borrowing may
not
exceed the applicable amount set forth in the related Bid
Request;
(ii) the principal amount of each Bid Loan must be $5,000,000 or
a
whole multiple of $1,000,000 in excess thereof;
33
<PAGE>
(iii) the acceptance of offers may be made only on the basis
of
ascending Absolute Rates or Eurocurrency Bid Margins within each
Interest
Period; and
(iv) the Company may not accept any offer that is described
in
Section 2.03(c)(iii) or that otherwise fails to comply with
the
requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders
have
submitted Competitive Bids at the same Absolute Rate or
Eurocurrency Bid
Margin, as the case may be, for the same Interest Period, and
the result of
accepting all of such Competitive Bids in whole (together with
any other
Competitive Bids at lower Absolute Rates or Eurocurrency Bid
Margins, as the
case may be, accepted for such Interest Period in conformity
with the
requirements of Section 2.03(e)(iii)) would be to cause the
aggregate
outstanding principal amount of the applicable Bid Borrowing to
exceed the
amount specified therefor in the related Bid Request, then,
unless otherwise
agreed by the Company, the Administrative Agent and such
Lenders, such
Competitive Bids shall be accepted as nearly as possible in
proportion to the
amount offered by each such Lender in respect of such Interest
Period, with
such accepted amounts being rounded to the nearest whole
multiple of
$1,000,000.
(g) Notice to Lenders of Acceptance or Rejection of Bids.
The
Administrative Agent shall promptly notify each Lender having
submitted a
Competitive Bid whether or not its offer has been accepted and,
if its offer
has been accepted, of the amount of the Bid Loan or Bid Loans to
be made by it
on the date of the applicable Bid Borrowing. Any Competitive Bid
or portion
thereof that is not accepted by the Company by the applicable
time specified in
Section 2.03(e) shall be deemed rejected.
(h) Notice of Eurocurrency Base Rate. If any Bid Borrowing is
to
consist of Eurocurrency Margin Loans, the Administrative Agent
shall determine
the Eurocurrency Base Rate for the relevant Interest Period, and
promptly after
making such determination, shall notify the Company and the
Lenders that will
be participating in such Bid Borrowing of such Eurocurrency Base
Rate.
(i) Funding of Bid Loans. Each Lender that has received
notice
pursuant to Section 2.03(g) that all or a portion of its
Competitive Bid has
been accepted by the Company shall make the amount of its Bid
Loan(s) available
to the Administrative Agent in immediately available funds at
the
Administrative Agent's Office not later than 12:00 noon on the
date of the
requested Bid Borrowing. Upon satisfaction of the applicable
conditions set
forth in Section 4.02, the Administrative Agent shall make all
funds so
received available to the Company in like funds as received by
the
Administrative Agent.
(j) Notice of Range of Bids. After each Competitive Bid
auction
pursuant to this Section 2.03, the Administrative Agent shall
notify each
Lender that submitted a Competitive Bid in such auction of the
ranges of bids
submitted (without the bidder's name) and accepted for each Bid
Loan and the
aggregate amount of each Bid Borrowing.
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2.04 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A)
the
L/C Issuer agrees, in reliance upon the agreements of the
Lenders set
forth in this Section 2.04, (1) from time to time on any
Business Day
during the period from the Closing Date until the Letter of
Credit
Expiration Date, to issue Letters of Credit denominated in
Dollars or in
one or more Alternative Currencies for the account of the
Company, and to
amend or extend Letters of Credit previously issued by it, in
accordance
with subsection (b) below, and (2) to honor drawings under the
Letters of
Credit; and (B) the Lenders severally agree to participate in
Letters of
Credit issued for the account of the Company and any drawings
thereunder;
provided that after giving effect to any L/C Credit Extension
with
respect to any Letter of Credit, (x) the Total Outstandings
shall not
exceed the Aggregate Commitments, (y) the aggregate Outstanding
Amount of
the Committed Loans of any Lender, plus such Lender's
Applicable
Percentage of the Outstanding Amount of all L/C Obligations,
plus such
Lender's Applicable Percentage of the Outstanding Amount of all
Swing
Line Loans shall not exceed such Lender's Commitment, and (z)
the
Outstanding Amount of the L/C Obligations shall not exceed the
Letter of
Credit Sublimit. Each request by the Company for the issuance
or
amendment of a Letter of Credit shall be deemed to be a
representation by
the Company that the L/C Credit Extension so requested complies
with the
conditions set forth in the proviso to the preceding sentence.
Within
the foregoing limits, and subject to the terms and conditions
hereof, the
Company's ability to obtain Letters of Credit shall be fully
revolving,
and accordingly the Company may, during the foregoing period,
obtain
Letters of Credit to replace Letters of Credit that have expired
or that
have been drawn upon and reimbursed. Each of the letters of
credit
outstanding on the date hereof and listed on Schedule 2.04 (the
"Existing
Letters of Credit") shall be deemed to have been issued pursuant
hereto,
and from and after the Closing Date shall be subject to and
governed by
the terms and conditions hereof.
(ii) The L/C Issuer shall not issue any Letter of Credit,
if:
(A) subject to Section 2.04(b)(iii), the expiry date of
such requested Letter of Credit would occur more than twelve
months
after the date of issuance or last extension, unless the
Required
Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit
would occur after the Maturity Date, unless all the Lenders
have
approved such expiry date.
(iii) The L/C Issuer shall not be under any obligation to issue
any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin
or
restrain the L/C Issuer from issuing such Letter of Credit, or
any
Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any
35
<PAGE>
Governmental Authority with jurisdiction over the L/C Issuer
shall
prohibit, or request that the L/C Issuer refrain from, the
issuance
of letters of credit generally or such Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to
such
Letter of Credit any restriction, reserve or capital
requirement
(for which the L/C Issuer is not otherwise compensated
hereunder)
not in effect on the Closing Date, or shall impose upon the
L/C
Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in
good
faith deems material to it;
(B) the issuance of such Letter of Credit would violate one
or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent
and
the L/C Issuer, such Letter of Credit is in an initial stated
amount
less than $100,000, in the case of a commercial Letter of
Credit, or
$500,000, in the case of a standby Letter of Credit;
(D) except as otherwise agreed by the Administrative Agent
and
the L/C Issuer, such Letter of Credit is to be denominated in
a
currency other than Dollars or an Alternative Currency;
(E) the L/C Issuer does not as of the issuance date of such
requested Letter of Credit issue Letters of Credit in the
requested
currency;
(F) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any
drawing
thereunder; or
(G) a default of any Lender's obligations to fund under
Section 2.04(c) exists or any Lender is at such time a
Defaulting
Lender hereunder, unless the L/C Issuer has entered into
satisfactory arrangements with the Company or such Lender to
eliminate the L/C Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the
L/C
Issuer would not be permitted at such time to issue such Letter
of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any
Letter
of Credit if (A) the L/C Issuer would have no obligation at such
time to
issue such Letter of Credit in its amended form under the terms
hereof, or
(B) the beneficiary of such Letter of Credit does not accept the
proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with
respect
to any Letters of Credit issued by it and the documents
associated
therewith, and the L/C Issuer shall have all of the benefits
and
immunities (A) provided to the Administrative Agent in Article
IX with
respect to any acts taken or omissions suffered by the L/C
Issuer in
connection with Letters of Credit issued by it or proposed to be
issued by
it and Issuer Documents pertaining to such Letters of Credit as
fully as
if the term "Administrative
36
<PAGE>
Agent" as used in Article IX included the L/C Issuer with
respect to such
acts or omissions, and (B) as additionally provided herein with
respect to
the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit;
Auto-
Extension Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case
may be, upon the request of the Company delivered to the L/C
Issuer (with
a copy to the Administrative Agent) in the form of a Letter of
Credit
Application, appropriately completed and signed by a Responsible
Officer
of the Company. Such Letter of Credit Application must be
received by the
L/C Issuer and the Administrative Agent (A) not later than 10:00
a.m. at
least two Business Days prior to the proposed issuance date or
date of
amendment, as the case may be, of any Letter of Credit
denominated in
Dollars, and (B) not later than 10:00 a.m. at least ten Business
Days
prior to the proposed issuance date or date of amendment, as the
case may
be, of any Letter of Credit denominated in an Alternative
Currency (or in
each case such later date and time as the Administrative Agent
and the L/C
Issuer may agree in a particular instance in their sole
discretion) prior
to the proposed issuance date or date of amendment, as the case
may be. In
the case of a request for an initial issuance of a Letter of
Credit, such
Letter of Credit Application shall specify in form and detail
satisfactory
to the L/C Issuer: (A) the proposed issuance date of the
requested Letter
of Credit (which shall be a Business Day); (B) the amount and
currency
thereof; (C) the expiry date thereof; (D) the name and address
of the
beneficiary thereof; (E) the documents to be presented by such
beneficiary
in case of any drawing thereunder; (F) the full text of any
certificate to
be presented by such beneficiary in case of any drawing
thereunder; and
(G) such other matters as the L/C Issuer may require. In the
case of a
request for an amendment of any outstanding Letter of Credit,
such Letter
of Credit Application shall specify in form and detail
satisfactory to the
L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date
of amendment thereof (which shall be a Business Day); (C) the
nature of
the proposed amendment; and (D) such other matters as the L/C
Issuer may
require. Additionally, the Company shall furnish to the L/C
Issuer and the
Administrative Agent such other documents and information
pertaining to
such requested Letter of Credit issuance or amendment, including
any
Issuer Documents, as the L/C Issuer or the Administrative Agent
may
require.
(ii) Promptly after receipt of any Letter of Credit Application,
the
L/C Issuer will confirm with the Administrative Agent (by
telephone or in
writing) that the Administrative Agent has received a copy of
such Letter
of Credit Application from the Company and, if not, the L/C
Issuer will
provide the Administrative Agent with a copy thereof. Unless the
L/C
Issuer has received written notice from any Lender, the
Administrative
Agent or the Company, at least one Business Day prior to the
requested
date of issuance or amendment of the applicable Letter of
Credit, that one
or more applicable conditions contained in Article IV shall not
then be
satisfied, then, subject to the terms and conditions hereof, the
L/C
Issuer shall, on the requested date, issue a Letter of Credit
for the
account of the Company or enter into the applicable amendment,
as the case
may be, in each case in accordance with the L/C Issuer's usual
and
customary business practices. Immediately upon the issuance of
each Letter
of Credit, each Lender shall be deemed to, and hereby
irrevocably and
unconditionally agrees to, purchase from
37
<PAGE>
the L/C Issuer a risk participation in such Letter of Credit in
an amount
equal to the product of such Lender's Applicable Percentage
times the
amount of such Letter of Credit.
(iii) If the Company so requests in any applicable Letter of
Credit
Application, the L/C Issuer may, in its sole and absolute
discretion,
agree to issue a Letter of Credit that has automatic extension
provisions
(each, an "Auto-Extension Letter of Credit"); provided that any
such
Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any
such extension at least once in each twelve-month period
(commencing with
the date of issuance of such Letter of Credit) by giving prior
notice to
the beneficiary thereof not later than a day (the "Non-Extension
Notice
Date") in each such twelve-month period to be agreed upon at the
time such
Letter of Credit is issued. Unless otherwise directed by the L/C
Issuer,
the Company shall not be required to make a specific request to
the L/C
Issuer for any such extension. Once an Auto-Extension Letter of
Credit has
been issued, the Lenders shall be deemed to have authorized (but
may not
require) the L/C Issuer to permit the extension of such Letter
of Credit
at any time to an expiry date not later than the Letter of
Credit
Expiration Date; provided, however, that the L/C Issuer shall
not permit
any such extension if (A) the L/C Issuer has determined that it
would not
be permitted, or would have no obligation, at such time to issue
such
Letter of Credit in its revised form (as extended) under the
terms hereof
(by reason of the provisions of Section 2.04(a)(ii),
2.04(a)(iii) or
otherwise), or (B) it has received notice (which may be by
telephone or in
writing) on or before the day that is five Business Days before
the
Non-Extension Notice Date (1) from the Administrative Agent that
the
Required Lenders have elected not to permit such extension or
(2) from the
Administrative Agent, any Lender or the Company that one or more
of the
applicable conditions specified in Section 4.02 is not then
satisfied, and
in each such case directing the L/C Issuer not to permit such
extension.
(iv) Promptly after its delivery of any Letter of Credit or
any
amendment to a Letter of Credit to an advising bank with respect
thereto
or to the beneficiary thereof, the L/C Issuer will also deliver
to the
Company and the Administrative Agent a true and complete copy of
such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any
notice of a drawing under such Letter of Credit, the L/C Issuer
shall
notify the Company and the Administrative Agent thereof. In the
case of a
Letter of Credit denominated in an Alternative Currency, the
Company shall
reimburse the L/C Issuer in such Alternative Currency, unless
(A) the L/C
Issuer (at its option) shall have specified in such notice that
it will
require reimbursement in Dollars, or (B) in the absence of any
such
requirement for reimbursement in Dollars, the Company shall have
notified
the L/C Issuer promptly following receipt of the notice of
drawing that
the Company will reimburse the L/C Issuer in Dollars. In the
case of any
such reimbursement in Dollars of a drawing under a Letter of
Credit
denominated in an Alternative Currency, the L/C Issuer shall
notify the
Company of the Dollar Equivalent of the amount of the drawing
promptly
following the determination thereof. Not later than 10:00 a.m.
on the date
of any payment by the L/C
38
<PAGE>
Issuer under a Letter of Credit to be reimbursed in Dollars, or
the
Applicable Time on the date of any payment by the L/C Issuer
under a
Letter of Credit to be reimbursed in an Alternative Currency
(each such
date, an "Honor Date"), the Company shall reimburse the L/C
Issuer through
the Administrative Agent in an amount equal to the amount of
such drawing
and in the applicable currency. If the Company fails to so
reimburse the
L/C Issuer by such time, the Administrative Agent shall promptly
notify
each Lender of the Honor Date, the amount of the unreimbursed
drawing
(expressed in Dollars in the amount of the Dollar Equivalent
thereof in
the case of a Letter of Credit denominated in an Alternative
Currency)
(the "Unreimbursed Amount"), and the amount of such Lender's
Applicable
Percentage thereof. In such event, the Company shall be deemed
to have
requested a Committed Borrowing of Base Rate Loans to be
disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount,
without regard
to the minimum and multiples specified in Section 2.02 for the
principal
amount of Base Rate Loans, but subject to the amount of the
unutilized
portion of the Aggregate Commitments and the conditions set
forth in
Section 4.02 (other than the delivery of a Committed Loan
Notice). Any
notice given by the L/C Issuer or the Administrative Agent
pursuant to
this Section 2.04(c)(i) may be given by telephone if immediately
confirmed
in writing; provided that the lack of such an immediate
confirmation shall
not affect the conclusiveness or binding effect of such
notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.04(c)(i) make funds available to the Administrative Agent for
the
account of the L/C Issuer, in Dollars, at the Administrative
Agent's
Office for Dollar-denominated payments in an amount equal to
its
Applicable Percentage of the Unreimbursed Amount not later than
12:00 noon
on the Business Day specified in such notice by the
Administrative Agent,
whereupon, subject to the provisions of Section 2.04(c)(iii),
each Lender
that so makes funds available shall be deemed to have made a
Base Rate
Committed Loan to the Company in such amount. The Administrative
Agent
shall remit the funds so received to the L/C Issuer in
Dollars.
(iii) With respect to any Unreimbursed Amount that is not
fully
refinanced by a Committed Borrowing of Base Rate Loans because
the
conditions set forth in Section 4.02 cannot be satisfied or for
any other
reason, the Company shall be deemed to have incurred from the
L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so
refinanced, which L/C Borrowing shall be due and payable on
demand
(together with interest) and shall bear interest at the Default
Rate. In
such event, each Lender's payment to the Administrative Agent
for the
account of the L/C Issuer pursuant to Section 2.04(c)(ii) shall
be deemed
payment in respect of its participation in such L/C Borrowing
and shall
constitute an L/C Advance from such Lender in satisfaction of
its
participation obligation under this Section 2.04.
(iv) Until each Lender funds its Committed Loan or L/C
Advance
pursuant to this Section 2.04(c) to reimburse the L/C Issuer for
any
amount drawn under any Letter of Credit, interest in respect of
such
Lender's Applicable Percentage of such amount shall be solely
for the
account of the L/C Issuer.
39
<PAGE>
(v) Each Lender's obligation to make Committed Loans or L/C
Advances
to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as
contemplated by this Section 2.04(c), shall be absolute and
unconditional
and shall not be affected by any circumstance, including (A) any
setoff,
counterclaim, recoupment, defense or other right which such
Lender may
have against the L/C Issuer, the Company or any other Person for
any
reason whatsoever; (B) the occurrence or continuance of a
Default, or (C)
any other occurrence, event or condition, whether or not similar
to any of
the foregoing; provided, however, that each Lender's obligation
to make
Committed Loans pursuant to this Section 2.04(c) is subject to
the
conditions set forth in Section 4.02 (other than delivery by the
Company
of a Committed Loan Notice). No such making of an L/C Advance
shall
relieve or otherwise impair the obligation of the Company to
reimburse the
L/C Issuer for the amount of any payment made by the L/C Issuer
under any
Letter of Credit, together with interest as provided herein.
(vi) If any Lender fails to make available to the
Administrative
Agent for the account of the L/C Issuer any amount required to
be paid by
such Lender pursuant to the foregoing provisions of this Section
2.04(c)
by the time specified in Section 2.04(c)(ii), the L/C Issuer
shall be
entitled to recover from such Lender (acting through the
Administrative
Agent), on demand, such amount with interest thereon for the
period from
the date such payment is required to the date on which such
payment is
immediately available to the L/C Issuer at a rate per annum
equal to the
applicable Overnight Rate from time to time in effect. A
certificate of
the L/C Issuer submitted to any Lender (through the
Administrative Agent)
with respect to any amounts owing under this subsection (vi)
shall be
conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under
any
Letter of Credit and has received from any Lender such Lender's
L/C
Advance in respect of such payment in accordance with Section
2.04(c), if
the Administrative Agent receives for the account of the L/C
Issuer any
payment in respect of the related Unreimbursed Amount or
interest thereon
(whether directly from the Company or otherwise, including
proceeds of
Cash Collateral applied thereto by the Administrative Agent),
the
Administrative Agent will distribute to such Lender its
Applicable
Percentage thereof (appropriately adjusted, in the case of
interest
payments, to reflect the period of time during which such
Lender's L/C
Advance was outstanding) in Dollars in the same funds as those
received by
the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the
account of the L/C Issuer pursuant to Section 2.04(c)(i) is
required to be
returned under any of the circumstances described in Section
10.05
(including pursuant to any settlement entered into by the L/C
Issuer in
its discretion), each Lender shall pay to the Administrative
Agent for the
account of the L/C Issuer its Applicable Percentage thereof on
demand of
the Administrative Agent, plus interest thereon from the date of
such
demand to the date such amount is returned by such Lender, at a
rate per
annum equal to the applicable Overnight Rate from time to time
in effect.
The obligations of the Lenders under this
40
<PAGE>
subsection shall survive the payment in full of the Obligations
and the
termination of this Agreement.
(e) Obligations Absolute. The obligation of the Company to
reimburse the
L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid
strictly in accordance with the terms of this Agreement under
all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of
Credit,
this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense
or
other right that the Company or any Subsidiary may have at any
time
against any beneficiary or any transferee of such Letter of
Credit (or any
Person for whom any such beneficiary or any such transferee may
be
acting), the L/C Issuer or any other Person, whether in
connection with
this Agreement, the transactions contemplated hereby or by such
Letter of
Credit or any agreement or instrument relating thereto, or any
unrelated
transaction;
(iii) any draft, demand, certificate or other document
presented
under such Letter of Credit proving to be forged, fraudulent,
invalid or
insufficient in any respect or any statement therein being
untrue or
inaccurate in any respect; or any loss or delay in the
transmission or
otherwise of any document required in order to make a drawing
under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of
Credit
against presentation of a draft or certificate that does not
strictly
comply with the terms of such Letter of Credit; or any payment
made by the
L/C Issuer under such Letter of Credit to any Person purporting
to be a
trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of
creditors, liquidator, receiver or other representative of or
successor to
any beneficiary or any transferee of such Letter of Credit,
including any
arising in connection with any proceeding under any Debtor
Relief Law;
(v) any adverse change in the relevant exchange rates or in
the
availability of the relevant Alternative Currency to the Company
or in the
relevant currency markets generally; or
(vi) any other circumstance or happening whatsoever, whether or
not
similar to any of the foregoing, including any other
circumstance that
might otherwise constitute a defense available to, or a
discharge of, the
Company or any Subsidiary.
The Company shall promptly examine a copy of each Letter of
Credit and
each amendment thereto that is delivered to it and, in the event
of any claim of
noncompliance with the Company's instructions or other
irregularity, the Company
will immediately notify the L/C Issuer. The Company shall be
conclusively deemed
to have waived any such claim against the L/C Issuer and its
correspondents
unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Company agree that,
in paying
any drawing under a Letter of Credit, the L/C Issuer shall not
have any
responsibility to obtain any
41
<PAGE>
document (other than any sight draft, certificates and documents
expressly
required by the Letter of Credit) or to ascertain or inquire as
to the validity
or accuracy of any such document or the authority of the Person
executing or
delivering any such document. None of the L/C Issuer, the
Administrative Agent,
any of their respective Related Parties nor any correspondent,
participant or
assignee of the L/C Issuer shall be liable to any Lender for (i)
any action
taken or omitted in connection herewith at the request or with
the approval of
the Lenders or the Required Lenders, as applicable; (ii) any
action taken or
omitted in the absence of gross negligence or willful
misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any
document or
instrument related to any Letter of Credit or Issuer Document.
The Company
hereby assumes all risks of the acts or omissions of any
beneficiary or
transferee with respect to its use of any Letter of Credit;
provided, however,
that this assumption is not intended to, and shall not, preclude
the Company's
pursuing such rights and remedies as it may have against the
beneficiary or
transferee at law or under any other agreement. None of the L/C
Issuer, the
Administrative Agent, any of their respective Related Parties
nor any
correspondent, participant or assignee of the L/C Issuer shall
be liable or
responsible for any of the matters described in Section
2.04(e)(i) through (vi);
provided, however, that anything in such clauses to the
contrary
notwithstanding, the Company may have a claim against the L/C
Issuer, and the
L/C Issuer may be liable to the Company, to the extent, but only
to the extent,
of any direct, as opposed to consequential or exemplary, damages
suffered by the
Company which the Company proves were caused by the L/C Issuer's
willful
misconduct or gross negligence or the L/C Issuer's willful
failure to pay under
any Letter of Credit after the presentation to it by the
beneficiary of a sight
draft and certificate(s) strictly complying with the terms and
conditions of a
Letter of Credit. In furtherance and not in limitation of the
foregoing, the L/C
Issuer may accept documents that appear on their face to be in
order, without
responsibility for further investigation, regardless of any
notice or
information to the contrary, and the L/C Issuer shall not be
responsible for the
validity or sufficiency of any instrument transferring or
assigning or
purporting to transfer or assign a Letter of Credit or the
rights or benefits
thereunder or proceeds thereof, in whole or in part, which may
prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative
Agent, (i) if
the L/C Issuer has honored any full or partial drawing request
under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of
the Letter of Credit Expiration Date, any L/C Obligation for any
reason remains
outstanding, the Company shall, in each case, immediately Cash
Collateralize the
then Outstanding Amount of all L/C Obligations. Sections 2.06
and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder. For
purposes of this Section 2.04, Section 2.06 and Section 8.02(c),
"Cash
Collateralize" means to pledge and deposit with or deliver to
the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the
L/C Obligations, cash or deposit account balances pursuant to
documentation in
form and substance satisfactory to the Administrative Agent and
the L/C Issuer
(which documents are hereby consented to by the Lenders).
Derivatives of such
term have corresponding meanings. The Company hereby grants to
the
Administrative Agent, for the benefit of the L/C Issuer and the
Lenders, a
security interest in all such cash, deposit accounts and all
balances therein
and all proceeds of the foregoing. Cash Collateral shall be
maintained in
blocked, non-interest bearing deposit accounts at Bank of
America.
(h) Applicability of ISP and UCP. Unless otherwise expressly
agreed by the
L/C Issuer and the Company when a Letter of Credit is issued
(including any such
agreement
42
<PAGE>
applicable to an Existing Letter of Credit), (i) the rules of
the ISP shall
apply to each standby Letter of Credit, and (ii) the rules of
the Uniform
Customs and Practice for Documentary Credits, as most recently
published by the
International Chamber of Commerce at the time of issuance shall
apply to each
commercial Letter of Credit.
(i) Letter of Credit Fees. The Company shall pay to the
Administrative
Agent for the account of each Lender in accordance with its
Applicable
Percentage a Letter of Credit fee (the "Letter of Credit Fee")
(i) for each
commercial Letter of Credit equal to 50% times the Applicable
Rate times the
Dollar Equivalent of the daily amount available to be drawn
under such Letter of
Credit, and (ii) for each standby Letter of Credit equal to the
Applicable Rate
times the Dollar Equivalent of the daily amount available to be
drawn under such
Letter of Credit. For purposes of computing the daily amount
available to be
drawn under any Letter of Credit, the amount of such Letter of
Credit shall be
determined in accordance with Section 1.09. Letter of Credit
Fees shall be (i)
computed on a quarterly basis in arrears and (ii) due and
payable on the first
Business Day after the end of each March, June, September and
December,
commencing with the first such date to occur after the issuance
of such Letter
of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If
there is any change in the Applicable Rate during any quarter,
the daily amount
available to be drawn under each Letter of Credit shall be
computed and
multiplied by the Applicable Rate or 50% of such Applicable
Rate, as the case
may be, separately for each period during such quarter that such
Applicable Rate
was in effect.
(j) Fronting Fee and Documentary and Processing Charges Payable
to L/C
Issuer. The Company shall pay directly to the L/C Issuer for its
own account, in
Dollars, a fronting fee (i) with respect to each commercial
Letter of Credit, at
the rate specified in the BofA Fee Letter, computed on the
Dollar Equivalent of
the amount of such Letter of Credit, and payable upon the
issuance thereof, (ii)
with respect to any amendment of a commercial Letter of Credit
increasing the
amount of such Letter of Credit, at a rate separately agreed
between the Company
and the L/C Issuer, computed on the Dollar Equivalent of the
amount of such
increase, and payable upon the effectiveness of such amendment,
and (iii) with
respect to each standby Letter of Credit, at the rate per annum
specified in the
BofA Fee Letter, computed on the Dollar Equivalent of the daily
amount available
to be drawn under such Letter of Credit on a quarterly basis in
arrears, and due
and payable on the first Business Day after the end of each
March, June,
September and December, commencing with the first such date to
occur after the
issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and
thereafter on demand. For purposes of computing the daily amount
available to be
drawn under any Letter of Credit, the amount of such Letter of
Credit shall be
determined in accordance with Section 1.09. In addition, the
Company shall pay
directly to the L/C Issuer for its own account, in Dollars, the
customary
issuance, presentation, amendment and other processing fees, and
other standard
costs and charges, of the L/C Issuer relating to letters of
credit as from time
to time in effect. Such customary fees and standard costs and
charges are due
and payable on demand and are nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict
between
the terms hereof and the terms of any Issuer Document, the terms
hereof shall
control.
43
<PAGE>
2.05 SWING LINE LOANS.
(a) The Swing Line. Subject to the terms and conditions set
forth herein,
the Swing Line Lender agrees, in reliance upon the agreements of
the other
Lenders set forth in this Section 2.05, to make loans (each such
loan, a "Swing
Line Loan") to the Company from time to time on any Business Day
during the
Availability Period in an aggregate amount not to exceed at any
time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing
Line Loans, when aggregated with the Applicable Percentage of
the Outstanding
Amount of Committed Loans and L/C Obligations of the Lender
acting as Swing Line
Lender, may exceed the amount of such Lender's Commitment;
provided, however,
that after giving effect to any Swing Line Loan, (i) the Total
Outstandings
shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding
Amount of the Committed Loans of any Lender, plus such Lender's
Applicable
Percentage of the Outstanding Amount of all L/C Obligations,
plus such Lender's
Applicable Percentage of the Outstanding Amount of all Swing
Line Loans shall
not exceed such Lender's Commitment, and provided, further, that
the Company
shall not use the proceeds of any Swing Line Loan to refinance
any outstanding
Swing Line Loan. Within the foregoing limits, and subject to the
other terms and
conditions hereof, the Company may borrow under this Section
2.05, prepay under
Section 2.06, and reborrow under this Section 2.05. Each Swing
Line Loan shall
be a Base Rate Loan. Immediately upon the making of a Swing Line
Loan, each
Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to,
purchase from the Swing Line Lender a risk participation in such
Swing Line Loan
in an amount equal to the product of such Lender's Applicable
Percentage times
the amount of such Swing Line Loan.
(b) Borrowing Procedures. Each Swing Line Borrowing shall be
made upon the
Company's irrevocable notice to the Swing Line Lender and the
Administrative
Agent, which may be given by telephone. Each such notice must be
received by the
Swing Line Lender and the Administrative Agent not later than
12:00 noon on the
requested borrowing date, and shall specify (i) the amount to be
borrowed, which
shall be in a minimum amount of $1,000,000, and (ii) the
requested borrowing
date, which shall be a Business Day. Each such telephonic notice
must be
confirmed promptly by delivery to the Swing Line Lender and the
Administrative
Agent of a written Swing Line Loan Notice, appropriately
completed and signed by
a
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