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Exhibit 4.14
Published Deal CUSIP Number: 81154LAA5
CREDIT AGREEMENT
Dated as of December 3, 2004
among
SEABOARD CORPORATION,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and a L/C Issuer,
SCOTIA CAPITAL, INC.,
as Syndication Agent,
and
HARRIS TRUST AND SAVINGS BANK
and
SUNTRUST BANK,
as Co-Documentation Agents
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC
and
SCOTIA CAPITAL INC.,
as
Joint Lead Arrangers and Joint Book Managers
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms 1
1.02 Other Interpretive Provisions 21
1.03 Accounting Matters 22
1.04 Times of Day 23
1.05 Letter of Credit Amounts 23
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 Committed Loans 23
2.02 Borrowings, Conversions and Continuations of Committed
Loans 23
2.03 Letters of Credit. 25
2.04 Swing Line Loans 34
2.05 Prepayments 37
2.06 Termination or Reduction of Commitments 37
2.07 Repayment of Loans 38
2.08 Interest 38
2.09 Fees 39
2.10 Computation of Interest and Fees 39
2.11 Evidence of Debt 39
2.12 Payments Generally; Administrative Agent's Clawback 40
2.13 Sharing of Payments by Lenders 42
2.14 Increase in Commitments 42
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes 43
3.02 Illegality 46
3.03 Inability to Determine Rates 46
3.04 Increased Costs; Reserves on Eurodollar Rate Loans 47
3.05 Compensation for Losses 48
3.06 Mitigation Obligations; Replacement of Lenders 49
3.07 Survival 49
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit Extension 50
4.02 Conditions to all Credit Extensions 51
<PAGE> i
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
5.01 Existence, Qualification and Power; Compliance with
Laws 52
5.02 Authorization; No Contravention 52
5.03 Governmental Authorization; Other Consents 52
5.04 Binding Effect 53
5.05 Financial Statements; No Material Adverse Effect 53
5.06 Litigation 53
5.07 No Default 53
5.08 Ownership of Property; Liens 54
5.09 Environmental Compliance 54
5.10 Insurance 54
5.11 Taxes 54
5.12 ERISA Compliance 54
5.13 Subsidiaries; Equity Interests 55
5.14 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act 55
5.15 Disclosure 55
5.16 Compliance with Laws 56
5.17 Intellectual Property; Licenses, Etc 56
ARTICLE VI.
AFFIRMATIVE COVENANTS
6.01 Financial Statements 56
6.02 Certificates; Other Information 57
6.03 Notices 59
6.04 Payment of Obligations 59
6.05 Preservation of Existence, Etc 59
6.06 Maintenance of Properties 60
6.07 Maintenance of Insurance 60
6.08 Compliance with Laws 60
6.09 Books and Records 60
6.10 Inspection Rights 60
6.11 Use of Proceeds 61
ARTICLE VII.
NEGATIVE COVENANTS
7.01 Negative Pledge 61
7.02 Investments 63
7.03 Subsidiary Indebtedness 64
7.04 Fundamental Changes 65
7.05 Dispositions 65
7.06 Restricted Payments 66
7.07 Change in Nature of Business 67
<PAGE> ii
7.08 Transactions with Affiliates 67
7.09 Burdensome Agreements 67
7.10 Use of Proceeds 67
7.11 Acquisitions 68
7.12 Financial Covenants 68
7.13 Amendments to Senior Note Agreements and Seaboard
Overseas Credit Facility 68
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default 69
8.02 Remedies Upon Event of Default 71
8.03 Application of Funds 71
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 Appointment and Authority 72
9.02 Rights as a Lender 72
9.03 Exculpatory Provisions 72
9.04 Reliance by Administrative Agent 73
9.05 Delegation of Duties 74
9.06 Resignation of Administrative Agent; L/C Issuer 74
9.07 Non-Reliance on Administrative Agent and Other Lenders
75
9.08 No Other Duties, Etc 75
9.09 Administrative Agent May File Proofs of Claim 75
ARTICLE X.
MISCELLANEOUS
10.01 Amendments, Etc 76
10.02 Notices; Effectiveness; Electronic Communication 77
10.03 No Waiver; Cumulative Remedies 79
10.04 Expenses; Indemnity; Damage Waiver 79
10.05 Payments Set Aside 81
10.06 Successors and Assigns 81
10.07 Treatment of Certain Information; Confidentiality 85
10.08 Right of Setoff 86
10.09 Interest Rate Limitation 86
10.10 Counterparts; Integration; Effectiveness 86
10.11 Survival of Representations and Warranties 86
10.12 Severability 87
10.13 Replacement of Lenders 87
10.14 Governing Law; Jurisdiction; Etc 88
10.15 Waiver of Jury Trial 88
10.16 USA PATRIOT Act Notice 89
<PAGE> iii
SCHEDULES
1.01(a) Existing Letters of Credit
2.01 Commitments and Applicable Percentages
5.05 Supplement to Interim Financial Statements
5.13 Subsidiaries and Other Equity Investments
7.01 Existing Liens
7.03 Existing Indebtedness
10.02 Administrative Agent's Office; Certain
Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F-1 Opinion of Shook, Hardy & Bacon, L.L.P.
F-2 Opinion of Helms Mulliss & Wicker, PLLC
G Letter of Credit Information Report
<PAGE> iv
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of December 3,
2004, among SEABOARD CORPORATION, a Delaware corporation
(the
"Borrower"), 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 a L/C Issuer.
The Borrower 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 AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following
terms shall have the meanings set forth below:
"1993 Senior Note Agreements" means the Note Purchase
Agreements dated as of December 1, 1993, among the Borrower
and
the purchasers of the Borrower's 1993 Senior Notes, as amended
by
the First Amendment to Note Agreements dated as of March 31,
1994, and the Second Amendment to Note Agreements dated as
of
September 30, 2002.
"1993 Senior Notes" means, collectively, the Borrower's
6.49% Senior Notes due December 1, 2005, issued in an
initial
aggregate principal amount of $100,000,000.
"1995 Senior Note Agreements" means the Note Purchase
Agreements dated as of June 1, 1995, among the Borrower and
the
purchasers of the Borrower's 1995 Senior Notes, as amended by
the
First Amendment to Note Agreements dated as of December 15,
1995,
and the Second Amendment to Note Agreements dated as of
September
30, 2002.
"1995 Senior Notes" means, collectively, the Borrower's
7.88% Senior Notes due June 1, 2007, issued in an initial
aggregate principal amount of $125,000,000.
"2002 Senior Note Agreements" means the Note Purchase
Agreements dated as of September 30, 2002, among the Borrower
and
the purchasers of the Borrower's 2002 Senior Notes.
"2002 Senior Notes" means, collectively, the Borrower's (a)
5.80% Senior Notes, Series A, due September 30, 2009, issued
in
an initial aggregate principal amount of $32,500,000, (b)
6.21%
Senior Notes, Series B, due September 30, 2009, issued in an
initial aggregate principal amount of $38,000,000, (c) 6.21%
Senior Notes, Series C, due September 30, 2012, issued in an
initial aggregate principal amount of $7,500,000, and (d)
6.92%
Senior Notes, Series D, due September 30, 2012, issued in an
initial aggregate principal amount of $31,000,000.
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or
indirectly, in (a) the acquisition by the Borrower or a
Subsidiary of all or
<PAGE>
substantially all of the assets of a Person,
or of any line of business or division of a Person, or (b)
the
acquisition by the Borrower or a Subsidiary of in excess of
50%
of the Equity Interests of any Person (other than a Person
already a Subsidiary), 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.
"Administrative Agent's Office" means the Administrative
Agent's address and, as appropriate, account as set forth on
Schedule 10.02 or such other address or account as the
Administrative Agent may from time to time notify to the
Borrower
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.
"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 the following percentages per annum,
based upon the Consolidated Leverage Ratio as set forth in
the
most recent Compliance Certificate received by the
Administrative
Agent pursuant to Section 6.02(a):
<PAGE> 2
Applicable Rate
Eurodollar
Rate +
Standby Commercial
Pricing Consolidated Facility Letter of Letters of Base
Level Leverage Ratio Fee Credit Credit Rate +
1 Less than or 0.2000% 0.5500% 0.1375% 0.0000%
equal to 1.50
to 1.00
2 Greater than 0.2250% 0.6500% 0.1625% 0.000%
1.50 to 1.00
but less than
or equal to
2.00 to 1.00
3 Greater than 0.2500% 0.7500% 0.1875% 0.0000%
2.00 to 1.00
but less than
or equal to
2.50 to 1.00
4 Greater than 0.3000% 0.9500% 0.2375% 0.0000%
2.50 to 1.00
but less than
or equal to
3.00 to 1.00
5 Greater than 0.3500% 1.1500% 0.2875% 0.0000%
3.00 to 1.00
but less than
or equal to
3.50 to 1.00
6 Greater than 0.4000% 1.3500% 0.3375% 0.2500%
3.50 to 1.00
Any increase or decrease in the Applicable Rate resulting from
a
change in the Consolidated Leverage Ratio shall become
effective
as of the first Business Day immediately following the date
a
Compliance Certificate is delivered pursuant to Section
6.02(a);
provided, however, that if a Compliance Certificate is not
delivered when due in accordance with such Section, then
Pricing
Level 6 shall apply as of the first Business Day after the
date
on which such Compliance Certificate was required to have
been
delivered until the first Business Day after the date on
which
such Compliance Certificate is actually delivered. The
Applicable Rate in effect from the Closing Date through the
first
Business Day immediately following the date a Compliance
Certificate is delivered or required to be pursuant to
Section
6.02(a) for the fiscal year ended December 31, 2004 shall be
determined based upon the Consolidated Leverage Ratio set
forth
in the Compliance Certificate delivered on the Closing Date
pursuant to Section 4.01(a)(vii).
"Approved Fund" means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c)
an
entity or an Affiliate of an entity that administers or manages
a
Lender.
"Arrangers" means BAS and Scotia Capital, Inc., in their
capacities as joint lead arrangers and joint book managers.
"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 E or any other form approved
by
the Administrative Agent.
<PAGE> 3
"Attributable Indebtedness" means, 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 Synthetic Lease Obligation, 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, and (c) in respect of any asset
securitization transaction of any Person, (i) the actual
amount
of any unrecovered investment of purchasers or transferees
of
assets so transferred, plus (ii) in the case of any other
recourse, repurchase, or debt obligation described in clause
(a)
of the definition of "Off-Balance Sheet Liabilities," the
capitalized amount of such obligation that would appear on a
balance sheet of such Person prepared on such date in
accordance
with GAAP if such sale or transfer or assets were accounted
for
as a secured loan.
"Audited Financial Statements" means the audited
consolidated balance sheet of the Borrower and its
Subsidiaries
and Consolidated Entities for the fiscal year ended December
31,
2003, and the related consolidated statements of earnings,
shareholders' equity and cash flows for such fiscal year of
the
Borrower and its Subsidiaries and Consolidated Entities,
including the notes thereto.
"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 2.06, 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.
"BAS" means Banc of America Securities LLC 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.
"Borrower" has the meaning specified in the introductory
paragraph hereto.
"Borrowing" means a Committed Borrowing or a Swing Line
Borrowing, as the context may require.
<PAGE> 4
"Bresky Group" means (a) H. Harry Bresky, Otto Bresky, Jr.
(brother of H. Harry Bresky) and the estate of Marjorie
Shifman
(deceased sister of H. Harry Bresky), (b) spouses, heirs,
legatees, lineal descendants, and spouses of lineal
descendants,
other blood relatives, step-children, adopted children,
and/or
estates or representatives of estates of H. Harry Bresky,
Otto
Bresky, Jr. and Marjorie Shifman, (c) trusts established for
the
benefit of spouses, lineal descendants and spouses of lineal
descendants, other blood relatives, step-children, and/or
adopted
children of H. Harry Bresky, Otto Bresky, Jr., and Marjorie
Shifman and (d) any person which is directly or indirectly
Controlled by a person described in the preceding clauses
(a),
(b) or (c).
"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 is located and, if such day
relates
to any Eurodollar Rate Loan, means any such day on which
dealings
in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.
"Cash Collateralize" has the meaning specified in Section
2.03(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 an event or series of events by
which any "person" or "group" (as such terms are used in
Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding (x) any employee benefit plan of such person or
its
subsidiaries, and any person or entity acting in its capacity
as
trustee, agent or other fiduciary or administrator of any
such
plan, (y) Seaboard Flour and (z) any member of the Bresky
Group)
(i) becomes the "beneficial owner" (as defined in Rules 13d-3
and
13d-5 under the Securities Exchange Act of 1934, except that
a
person or group shall be deemed to have "beneficial ownership"
of
all securities that such person or group has the right to
acquire
(such right, an "option right"), whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of 50% or more of the equity
securities
of the Borrower entitled to vote for members of the board of
directors or equivalent governing body of the Borrower on a
fully-
diluted basis (and taking into account all such securities
that
such person or group has the right to acquire pursuant to
any
option right), or (ii) shall have acquired by contract or
otherwise, or shall have entered into a contract or
arrangement
that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly,
a
controlling influence over the management or policies of the
Borrower, or control over the equity securities of the
Borrower
entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted
basis (and taking into account all such securities that such
Person or group has the right to acquire pursuant to any
option
right) representing 50% or more of the combined voting power
of
such securities.
"Closing Date" means the first date all the conditions
precedent in Section 4.01 are satisfied or waived in
accordance
with Section 10.01.
<PAGE> 5
"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation to (a)
make Committed Loans to the Borrower 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 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 and, in the case
of
Eurodollar Rate 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 Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be
substantially in the form of Exhibit A.
"Compliance Certificate" means a certificate substantially
in the form of Exhibit D.
"Consolidated Adjusted Leverage Ratio" means, as of any date
of determination, the ratio of (a) the remainder of
Consolidated
Funded Indebtedness as of such date, minus all unencumbered
cash
and cash equivalents of the Borrower and its Subsidiaries
and
Consolidated Entities as of such date with adjustments for
international tax effects at an assumed withholding rate of
35%,
as applicable, to (b) Consolidated EBITDA for the period of
the
four fiscal quarters most recently ended.
"Consolidated EBITDA" means, for any period, for the
Borrower and its Subsidiaries and Consolidated Entities on a
consolidated basis, an amount equal to Consolidated Net
Income
for such period plus (a) the following to the extent deducted
in
calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for
Federal,
state, local and foreign income taxes payable by the Borrower
and
its Subsidiaries for such period, (iii) depreciation and
amortization expense and (iv) other expenses, losses or
charges
of the Borrower and its Subsidiaries and Consolidated
Entities
reducing such Consolidated Net Income which do not represent
a
cash item in such period or any future period, and minus (b)
the
following to the extent included in calculating such
Consolidated
Net Income: (i) Federal, state, local and foreign income tax
credits of the Borrower and its Subsidiaries and
Consolidated
Entities for such period and (ii) all non-cash items and all
other extraordinary, unusual or nonrecurring gains of the
Borrower and its Subsidiaries and Consolidated Entities
increasing Consolidated Net Income for such period.
"Consolidated Entity" means an entity, other than a
Subsidiary, that is subject to consolidation under GAAP.
<PAGE> 6
"Consolidated Funded Indebtedness" means, as of any date of
determination, for the Borrower and its Subsidiaries and
Consolidated Entities on a consolidated basis, without
duplication, the sum of (a) the outstanding principal amount
of
all obligations, whether current or long-term, for borrowed
money
(including Obligations hereunder) and all obligations
evidenced
by bonds, debentures, notes, loan agreements or other
similar
instruments, (b) the outstanding principal amount of all
purchase
money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial),
bankers'
acceptances, bank guaranties, surety bonds and similar
instruments, (d) the outstanding amount of all obligations
in
respect of the deferred purchase price of property or
services
(other than trade accounts payable and accrued expenses in
the
ordinary course of business), (e) Attributable Indebtedness
in
respect of capital leases, Synthetic Lease Obligations and
other
Off-Balance Sheet Liabilities, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the
types
specified in clauses (a) through (e) above of Persons other
than
the Borrower, any Subsidiary or any Consolidated Entity, and
(g)
all Indebtedness of the types referred to in clauses (a)
through
(f) above of any partnership or joint venture (other than a
joint
venture that is itself a corporation or limited liability
company) in which the Borrower or a Subsidiary or any
Consolidated Entity is a general partner or joint venturer,
unless such Indebtedness is non-recourse to the Borrower,
such
Subsidiary or such Consolidated Entity.
"Consolidated Interest Charges" means, for any period, for
the Borrower and its Subsidiaries and Consolidated Entities on
a
consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses
of
the Borrower and its Subsidiaries and Consolidated Entities
in
connection with borrowed money (including capitalized
interest)
or in connection with the deferred purchase price of assets,
in
each case to the extent treated as interest in accordance
with
GAAP, (b) the portion of rent expense of the Borrower and
its
Subsidiaries and Consolidated Entities with respect to such
period under capital leases that is treated as interest in
accordance with GAAP, and (c) all implicit interest in
connection
with Synthetic Lease Obligations and other Off-Balance Sheet
Liabilities.
"Consolidated Leverage Ratio" means, as of any date of
determination, the ratio of (a) Consolidated Funded
Indebtedness
as of such date to (b) Consolidated EBITDA for the period of
the
four fiscal quarters most recently ended.
"Consolidated Net Income" means, for any period, for the
Borrower and its Subsidiaries and Consolidated Entities on a
consolidated basis, the net income (after excluding therefrom
any
non-cash charges or credits relating to economic hedging
transactions) of the Borrower and its Subsidiaries and
Consolidated Entities (excluding extraordinary gains but
including extraordinary losses) for that period.
"Consolidated Tangible Net Worth" means, as of any date of
determination, for the Borrower and its Subsidiaries and
Consolidated Entities on a consolidated basis, Shareholders'
Equity (after excluding therefrom any non-cash charges or
credits
relating to economic hedging transactions) on such date minus
the
Intangible Assets of the Borrower and its Subsidiaries and
Consolidated Entities on such date.
<PAGE> 7
"Consolidated Total Capitalization" means, as of any date of
determination, the sum of (a) Consolidated Funded
Indebtedness
and (b) Shareholders' Equity (after excluding therefrom any
non-
cash charges or credits relating to economic hedging
transactions) on such date.
"Contractual Obligation" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, instrument or other undertaking 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.
"Cost of Acquisition" means, with respect to any
Acquisition, as at the date of entering into any agreement
therefor, the sum of the following (without duplication):
(a)
the value of the Equity Interests of the Borrower or any
Subsidiary to be transferred in connection therewith, (b)
the
amount of any cash and fair market value of other property
(excluding property described in clause (a) and the unpaid
principal amount of any debt instrument) given as
consideration,
(c) the amount (determined by using the face amount or the
amount
payable at maturity, whichever is greater) of any
Indebtedness
incurred, assumed or acquired by the Borrower or any
Subsidiary
in connection with such Acquisition, (d) all additional
purchase
price amounts in the form of earnouts and other contingent
obligations that should be recorded on the financial
statements
of the Borrower and its Subsidiaries in accordance with GAAP,
(e)
all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial
statements of the Borrower and its Subsidiaries in
accordance
with GAAP, and other affiliated contracts in connection with
such
Acquisition, (f) the aggregate fair market value of all
other
consideration given by the Borrower or any Subsidiary in
connection with such Acquisition, and (g) out of pocket
transaction costs for the services and expenses of
attorneys,
accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so
incurred.
For purposes of determining the Cost of Acquisition for any
transaction, the capital stock of the Borrower or a
Subsidiary
shall be valued (A) in the case of capital stock that is
then
designated as a national market system security by the
National
Association of Securities Dealers, Inc. ("NASDAQ") or is
listed
on a national securities exchange, the average of the last
reported bid and ask quotations or the last prices reported
thereon, and (B) with respect to any other Equity Interests,
as
determined by a committee composed of the disinterested
members
of the Board of Directors of the Borrower and, if requested
by
the Administrative Agent, determined to be a reasonable
valuation
by the independent public accountants referred to in Section
6.01(a), and (C) with respect to any Acquisition
accomplished
pursuant to the exercise of options or warrants or the
conversion
of securities, the Cost of Acquisition shall include both
the
cost of acquiring such option, warrant or convertible security
as
well as the cost of exercise or conversion.
"Credit Extension" means each of the following: (a) a
Borrowing and (b) an L/C Credit Extension.
"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
<PAGE> 8
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 Eurodollar Rate Loan, the
Default
Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) 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" or "Dispose" means the sale, transfer,
license, sales-type or direct financing lease or other
disposition (including any sale and leaseback transaction) of
any
property by any Person, including any sale, assignment,
transfer
or other disposal, with or without recourse, of any notes or
accounts receivable or any rights and claims associated
therewith.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of
a Lender; (c) an Approved Fund; and (d) any other financial
institution approved by (i) the Administrative Agent, the
L/C
Issuer and the Swing Line Lender, and (ii) unless an Event
of
Default has occurred and is continuing, the Borrower (each
such
approval not to be unreasonably withheld or delayed);
provided
that notwithstanding the foregoing, "Eligible Assignee" shall
not
include the Borrower or any of the Borrower's Affiliates or
Subsidiaries; and provided further, however, that an
Eligible
Assignee shall include only a Lender, an Affiliate of a Lender
or
another financial institution, which, through its Lending
Offices, is capable of lending Dollars to the Borrower
without
the imposition of any Taxes, additional Taxes or Other Taxes,
as
the case may be.
"Environmental Laws" means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions,
grants,
franchises, licenses, agreements or governmental
restrictions
relating to pollution and the protection of the environment
or
the release of any materials into the environment, including
those related to hazardous substances or wastes, air
emissions
and discharges to waste or public systems.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities),
of
the
<PAGE> 9
Borrower or any of its Subsidiaries directly or indirectly
resulting from or based upon (a) violation of any
Environmental
Law, (b) the generation, use, handling, transportation,
storage,
treatment or disposal of any Hazardous Materials, (c) exposure
to
any Hazardous Materials, (d) the release or threatened release
of
any Hazardous Materials into the environment or (e) any
contract,
agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means, with respect to any Person, all of
the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or
other
rights for the purchase or acquisition from such Person of
shares
of capital stock of (or other ownership or profit interests
in)
such Person, all of the securities convertible into or
exchangeable for shares of capital stock of (or other
ownership
or profit interests in) such Person or warrants, rights or
options for the purchase or acquisition from such Person of
such
shares (or such other interests), and all of the other
ownership
or profit interests in such Person (including partnership,
member
or trust interests therein), whether voting or nonvoting,
and
whether or not such shares, warrants, options, rights or
other
interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate" means any trade or business (whether or
not incorporated) under common control with the Borrower
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 Borrower 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 that is treated as such a withdrawal under
Section
4062(e) of ERISA; (c) a complete or partial withdrawal by
the
Borrower 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 Sections 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 constitutes 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
for PBGC premiums due but not delinquent under Section 4007
of
ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Rate" means for any Interest Period with respect
to a Eurodollar Rate Loan, 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 Dollar deposits (for delivery on
the
first day of such Interest Period) with a term equivalent to
such
Interest Period. If such rate is not available at such time
for
any reason, then the "Eurodollar Rate" for such Interest
Period
shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery
on
the first day of
<PAGE> 10
such Interest Period in same day funds in the
approximate amount of the Eurodollar Rate Loan being made,
continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank
of
America's London Branch to major banks in the London
interbank
eurodollar market at their request at approximately 11:00
a.m.
(London time) two Business Days prior to the commencement of
such
Interest Period.
"Eurodollar Rate Loan" means a Committed Loan that bears
interest at a rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section
8.01.
"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
Borrower hereunder, (a) taxes imposed on or measured by its
overall 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 the case of any Lender, in which its
applicable
Lending Office is located, (b) any branch profits taxes
imposed
by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the
case
of a Foreign Lender (other than an assignee pursuant to a
request
by the Borrower under Section 10.13), any withholding tax that
is
imposed on amounts payable to such Foreign Lender at the
time
such Foreign Lender becomes a party hereto (or designates a
new
Lending Office) or is attributable to such Foreign 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
Foreign 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 Borrower with respect to
such
withholding tax pursuant to Section 3.01(a).
"Existing Letters of Credit" means the Letters of Credit
listed on Schedule 1.01(a).
"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 Letter" means the letter agreement, dated September 22,
2004, among the Borrower, the Administrative Agent and BAS.
"Foreign Lender" means any Lender that is organized under
the laws of a jurisdiction other than that in which the
Borrower
is resident for tax purposes. For purposes of this
<PAGE> 11
definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve
System of the United States.
"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 in the
United States set forth in the opinions and pronouncements of
the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements
of
the Financial Accounting Standards Board or such other
principles
as may be approved by a significant segment of the
accounting
profession in the United States, that are applicable to the
circumstances as of the date of determination, consistently
applied.
"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).
"Guarantee" means, as to any Person, (a) any obligation,
contingent or otherwise, of such Person guaranteeing or
having
the economic effect of guaranteeing any Indebtedness or
other
obligation payable or performable by another Person (the
"primary
obligor") in any manner, whether directly or indirectly, and
including any obligation of such Person, direct or indirect,
(i)
to purchase or pay (or advance or supply funds for the
purchase
or payment of) such Indebtedness or other obligation, (ii)
to
purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such
Indebtedness
or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of
the
primary obligor so as to enable the primary obligor to pay
such
Indebtedness or other obligation, or (iv) entered into for
the
purpose of assuring in any other manner the obligee in respect
of
such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss
in
respect thereof (in whole or in part), or (b) any Lien on
any
assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such
Indebtedness
or other obligation is assumed by such Person (or any right,
contingent or otherwise, of any holder of such Indebtedness
to
obtain any such Lien); provided, that "Guarantee" shall not
include obligations relating to the endorsement of checks or
other items for collection in the ordinary course of
business.
The amount of any Guarantee shall be deemed to be an amount
equal
to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the
<PAGE> 12
maximum reasonably anticipated liability in respect thereof
as
determined by the guaranteeing Person in good faith. The
term
"Guarantee" as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature
regulated
pursuant to any Environmental Law.
"Indebtedness" means, as to any Person at a particular time,
without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with
GAAP:
(a) all obligations of such Person for borrowed money
and all obligations of such Person evidenced by bonds,
debentures, notes, loan agreements or other similar
instruments;
(b) all direct or contingent obligations of such
Person arising under letters of credit (including standby
and commercial), bankers' acceptances, bank guaranties,
surety bonds and similar instruments;
(c) net obligations of such Person under any Swap
Contract;
(d) all obligations of such Person to pay the deferred
purchase price of property or services (other than trade
accounts payable in the ordinary course of business and, in
each case, not past due for more than 60 days and other than
accrued expenses in the ordinary course of business);
(e) indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by
such Person (including indebtedness arising under
conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by
such Person or is limited in recourse;
(f) capital leases, Synthetic Lease Obligations and
other Off-Balance Sheet Liabilities;
(g) all obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in
respect of any Equity Interest in such Person or any other
Person, valued, in the case of a redeemable preferred
interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;
and
(h) all Guarantees of such Person in respect of any of
the foregoing.
For all purposes hereof, the Indebtedness of any Person
shall include the Indebtedness of any partnership or joint
venture (other than a joint venture that is itself a
corporation
or limited liability company) in which such Person is a
general
partner or a joint venturer, unless such Indebtedness is
non-
recourse to such Person. The amount of any net obligation
under
any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. The amount of any
capital lease, Synthetic Lease Obligation or other
Off-Balance
Sheet Liability
<PAGE> 13
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.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Intangible Assets" means assets that are considered to be
intangible assets under GAAP, including customer lists,
goodwill,
computer software, copyrights, trade names, trademarks,
patents,
franchises, licenses, unamortized deferred charges (but
excluding
any deferred taxes), unamortized debt discount and
capitalized
research and development costs.
"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 Eurodollar 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.
"Interest Period" means, as to each Eurodollar Rate Loan,
the period commencing on the date such Eurodollar Rate Loan
is
disbursed or converted to or continued as a Eurodollar Rate
Loan
and ending on the date one, two, three or six months
thereafter,
as selected by the Borrower in its Committed Loan Notice;
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.
"Investment" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of
(a)
the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or
purchase
or other acquisition of any other debt or equity participation
or
interest in, another Person, including any partnership or
joint
venture interest in such other Person and any arrangement
pursuant to which the investor Guarantees Indebtedness of
such
other Person, or (c) the purchase or other acquisition (in
one
transaction or a series of transactions) of assets of
another
Person that constitute a business unit. For purposes of
covenant
compliance, the amount of any Investment shall be the amount
actually invested, without adjustment for subsequent increases
or
decreases in the value of such Investment.
"IP Rights" has the meaning specified in Section 5.17.
<PAGE> 14
"IRS" means the United States Internal Revenue Service.
"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 Credit Application, and any other
document,
agreement and instrument entered into by the L/C Issuer and
the
Borrower (or any Subsidiary) or in favor the L/C Issuer and
relating to any such Letter of Credit.
"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, directed duties,
requests,
licenses, authorizations and permits of, and agreements with,
any
Governmental Authority, in each case whether or not having
the
force of law.
"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.
"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.
"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 (a) Bank of America in its capacity as
issuer of Letters of Credit hereunder, (b) Bank of Nova Scotia
in
its capacity as issuer of Letters of Credit hereunder, (c)
Harris
Trust and Savings Bank in its capacity as issuer of Letters
of
Credit hereunder, (d) The Bank of New York in its capacity
as
issuer of Letters of Credit hereunder, (e) SunTrust Bank in
its
capacity as issuer of Letters of Credit hereunder, and (f)
any
successor issuer(s) of Letters of Credit hereunder. All
singular
references to the L/C Issuer shall mean any L/C Issuer,
either
L/C Issuer, the L/C Issuer that has issued the applicable
Letter
of Credit, or all L/C Issuers, as the context may require.
"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 1.05. 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.
<PAGE> 15
"Lender" has the meaning specified in the introductory
paragraph hereto and, as the context requires, includes the
Swing
Line Lender and each L/C Issuer.
"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 Borrower 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 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
2.03(i).
"Letter of Credit Sublimit" means an amount equal to
$70,000,000. The Letter of Credit Sublimit is part of, and
not
in addition to, the Aggregate Commitments.
"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).
"Loan" means an extension of credit by a Lender to a
Borrower under Article II in the form of a Committed Loan or
a
Swing Line Loan.
"Loan Documents" means this Agreement, each Note, each
Issuer Document and the Fee Letter.
"Material Adverse Effect" means (a) a material adverse
change in, or a material adverse effect upon, the
operations,
business, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the
Borrower
or the Borrower and its Subsidiaries and Consolidated
Entities
taken as a whole; (b) a material impairment of the ability of
the
Borrower to perform its obligations under any Loan Document;
or
(c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Borrower of any
Loan
Document.
"Maturity Date" means December 2, 2009.
"Multiemployer Plan" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA, to which the
Borrower or any ERISA Affiliate makes or is obligated to
make
contributions, or during the preceding five plan years, has
made
or been obligated to make contributions.
<PAGE> 16
"Net Cash Proceeds" means, with respect to the sale of any
asset by the Borrower or any Subsidiary, the remainder, if
any,
of (i) the sum of cash and cash equivalents received in
connection with such sale (including any cash received by way
of
deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received)
minus
(ii) the sum of (A) the principal amount of any Indebtedness
that
is secured by such asset and that is required to be repaid
in
connection with the sale thereof, (B) the out-of-pocket
expenses
incurred by the Borrower or any Subsidiary in connection
with
such sale and (C) income taxes reasonably estimated to be
actually payable within two years of the date of the
relevant
asset sale as a result of any gain recognized in connection
therewith.
"Non-Material Subsidiary" means a Subsidiary that,
(a) at no time during the then current fiscal year or
the two then preceding fiscal years of the Borrower,
constituted more than three percent (3%) of consolidated
total assets (as shown on the Borrower's consolidated
balance sheet) or Shareholders' Equity; or
(b) accounted for no more than three percent (3%) of
the revenues of the Borrower and its Subsidiaries,
determined on a consolidated basis, in respect of any one
or more of the then preceding twelve (12) fiscal quarters
of the Borrower.
"Note" means a promissory note made by a Borrower in favor
of a Lender evidencing Loans made by such Lender to the
Borrower,
substantially in the form of Exhibit C.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, the Borrower 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 Borrower
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.
"Off-Balance Sheet Liabilities" means, with respect to any
Person as of any date of determination thereof, without
duplication and to the extent not included as a liability on
the
consolidated balance sheet of such Person and its Subsidiaries
in
accordance with GAAP: (a) with respect to any asset
securitization transaction (including any accounts
receivable
purchase facility), the unrecovered investment of purchasers
or
transferees of assets so transferred and the principal amount
of
any recourse, repurchase or debt obligations incurred in
connection therewith; and (b) the monetary obligations under
any
financing lease or so-called "synthetic," tax retention or
off-
balance sheet lease transaction which, upon the application
of
any Debtor Relief Law to such Person or any of its
Subsidiaries,
would be characterized as indebtedness.
"Organization Documents" means, (a) with respect to any
corporation, the certificate or articles of incorporation and
the
bylaws (or equivalent or comparable constitutive documents
with
respect to any non-U.S. jurisdiction); (b) with respect to
any
limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c)
with
respect to any partnership, joint venture, trust or other form
of
business entity, the partnership, joint
<PAGE> 17
venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice
with respect thereto filed in connection with its formation
or
organization with the applicable Governmental Authority in
the
jurisdiction of its formation or organization and, if
applicable,
any certificate or articles of formation or organization of
such
entity.
"Other Taxes" means all present or future stamp or
documentary taxes or any other excise or property taxes,
charges
or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery
or
enforcement of, or otherwise with respect to, this Agreement
or
any other Loan Document.
"Outstanding Amount" means (i) with respect to Committed
Loans on any date, 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 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
changes in the aggregate amount of the L/C Obligations as of
such
date, including as a result of any reimbursements by the
Borrower
of Unreimbursed Amounts.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"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 Borrower or any ERISA Affiliate
or
to which the Borrower or any ERISA Affiliate contributes or
has
an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA,
has
made contributions at any time during the immediately
preceding
five plan years.
"Permitted Lines of Business" means (a) meat (including
chicken, turkey, beef, lamb and pork), poultry and seafood
production and processing, (b) ocean transportation and
related
ground transportation and support, (c) animal feed production
and
processing, (d) flour and feed milling, (e) power
production,
(f) commodity merchandising, (g) baking, and (h) the holding
of
cash and investments held for future use by the Borrower and
its
Subsidiaries in connection with any of the aforementioned
Permitted Lines of Business.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association,
company,
partnership, Governmental Authority or other entity.
"Plan" means any "employee benefit plan" (as such term is
defined in Section 3(3) of ERISA) established by the Borrower
or,
with respect to any such plan that is subject to Section 412
of
the Code or Title IV of ERISA, any ERISA Affiliate.
<PAGE> 18
"Priority Indebtedness" means, as of any date of
determination, the sum (without duplication) of (a) all
Indebtedness of the Borrower secured by Liens permitted by
Section 7.01(n), plus (b) all Indebtedness of Subsidiaries
permitted by Sections 7.03(c) and (g).
"Register" has the meaning specified in Section 10.06(c).
"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, other than events for which the
30-day
notice period has been waived.
"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 an L/C Credit
Extension, a Letter of Credit Application, and (c) 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.
"Responsible Officer" means the chief executive officer,
president, chief financial officer, treasurer or assistant
treasurer or any vice president of the Borrower. Any
document
delivered hereunder that is signed by a Responsible Officer
shall
be conclusively presumed to have been authorized by all
necessary
corporate action on the part of the Borrower and such
Responsible
Officer shall be conclusively presumed to have acted on behalf
of
the Borrower.
"Restricted Payment" means any dividend or other
distribution (whether in cash, securities or other property)
with
respect to any capital stock or other Equity Interest of the
Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any
such
capital stock or other Equity Interest, or on account of any
return of capital to the Borrower's stockholders, partners
or
members (or the equivalent Person thereof).
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
"Seaboard Flour" means Seaboard Flour LLC, a Delaware
limited liability company.
"Seaboard Overseas" means Seaboard Overseas Limited, a
Bahamian corporation.
<PAGE> 19
"Seaboard Overseas Credit Facility" means that certain
Credit Agreement dated as of February 21, 2003, as amended and
in
effect on the date hereof, among Seaboard Overseas, Standard
Chartered Bank, as the Administrative Agent, and the other
parties thereto.
"Senior Note Agreements" means collectively, (a) the 1993
Senior Note Agreements, (b) the 1995 Senior Note Agreements,
and
(c) the 2002 Senior Note Agreements.
"Senior Notes" means, collectively, (a) the 1993 Senior
Notes, (b) the 1995 Senior Notes, and (c) the 2002 Senior
Notes.
"Shareholders' Equity" means, as of any date of
determination, consolidated shareholders' equity of the
Borrower
and its Subsidiaries and Consolidated Entities as of that
date
determined in accordance with GAAP.
"SPC" has the meaning specified in Section 10.06(h).
"Subsidiary" of a Person means a corporation, partnership,
joint venture, limited liability company or other business
entity
of which a majority of the shares of securities or other
interests having ordinary voting power for the election of
directors or other governing body (other than securities or
interests having such power only by reason of the happening of
a
contingency) are at the time beneficially owned by such
Person.
Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary
or
Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap
transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity
options,
forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options
or
forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign
exchange
transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency
rate
swap transactions, currency options, spot contracts, or any
other
similar transactions or any combination of any of the
foregoing
(including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject
to
any master agreement, and (b) any and all transactions of
any
kind, and the related confirmations, which are subject to
the
terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and
Derivatives
Association, Inc., any International Foreign Exchange Master
Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master
Agreement"), including any such obligations or liabilities
under
any Master Agreement.
"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 clause
(a),
the amount(s) determined as the mark-to-market value(s) for
such
Swap Contracts, as determined based upon one or more
mid-market
or other readily available quotations provided by any
recognized
dealer in such Swap Contracts (which may include a Lender or
any
Affiliate of a Lender).
<PAGE> 20
"Swing Line" means the revolving credit facility made
available by the Swing Line Lender pursuant to Section 2.04.
"Swing Line Borrowing" means a borrowing of a Swing Line
Loan pursuant to Section 2.04.
"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
2.04(a).
"Swing Line Loan Notice" means a notice of a Swing Line
Borrowing pursuant to Section 2.04(b), which, if in writing,
shall be substantially in the form of Exhibit B.
"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.
"Synthetic Lease Obligation" means the monetary obligation
of a Person under (a) a so-called synthetic, off-balance sheet
or
tax retention lease, or (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).
"Taxes" means all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other
charges imposed by any Governmental Authority, including any
interest, additions to tax or penalties applicable thereto.
"Total Outstandings" means the aggregate Outstanding Amount
of all Loans and all L/C Obligations.
"Type" means, with respect to a Committed Loan, its
character as a Base Rate Loan or a Eurodollar Rate Loan.
"Unfunded Pension Liability" means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of
ERISA,
over the current value of that Pension 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." mean the United States of
America.
"Unreimbursed Amount" has the meaning specified in Section
2.03(c)(i).
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
<PAGE> 21
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 Matters. (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 Audited Financial Statements, except as otherwise
specifically prescribed herein.
(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 Borrower or the
Required Lenders shall so request, the Administrative Agent,
the
Lenders and the Borrower 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) the Borrower
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
<PAGE> 22
between calculations of such ratio or requirement made before
and
after giving effect to such change in GAAP.
(c) Accounting for Acquisitions. With respect to any
Acquisition having a Cost of Acquisition of at least
$50,000,000
consummated on or after the Closing Date, for each of the
four
fiscal quarter periods ending next following the date of any
Acquisition, (x) Consolidated EBITDA shall include the
historical
results of operations of the Person or assets so acquired,
and
which amounts may include such adjustments as are permitted
under
Regulation S-X of the SEC and reasonably satisfactory to the
Administrative Agent but (y) for purposes of determining
compliance with the provisions of Section 7.12(a), any
increase
in Consolidated Net Income resulting solely from such pro
forma
treatment of such Acquisition shall be disregarded.
1.04 Times of Day. Unless otherwise specified, all
references
herein to times of day shall be references to Pacific time
(daylight or standard, as applicable).
1.05 Letter of Credit Amounts. Unless otherwise specified
herein, the amount of a Letter of Credit at any time shall
be
deemed to be 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 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 COMMITMENTS AND CREDIT EXTENSIONS
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 Borrower 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 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. Within the limits of each Lender's
Commitment, and subject to the other terms and conditions
hereof,
the Borrower may borrow under this Section 2.01, prepay
under
Section 2.05, and reborrow under this Section 2.01.
Committed
Loans may be Base Rate Loans or Eurodollar 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
Eurodollar Rate Loans shall be made upon the Borrower'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
<PAGE> 23
Eurodollar Rate Loans or of any conversion of Eurodollar
Rate
Loans to Base Rate Committed Loans, (ii) on the requested
date
of any Borrowing of Base Rate Committed Loans; provided,
however, that if the Borrower wishes to request Eurodollar
Rate
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. four
Business
Days prior to the requested date of such Borrowing,
conversion
or continuation, 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. three Business Days before
the
requested date of such Borrowing, conversion or continuation,
the
Administrative Agent shall notify the Borrower (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 Borrower 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 Borrower. Each Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall
be
in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections
2.03(c) and 2.04(c), each Committed Borrowing of or conversion
to
Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof.
Each
Committed Loan Notice (whether telephonic or written) shall
specify (i) whether the Borrower is requesting a Committed
Borrowing, a conversion of Committed Loans from one Type to
the
other, or a continuation of Eurodollar Rate 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, and (v)
if
applicable, the duration of the Interest Period with respect
thereto. If the Borrower fails to specify a Type of
Committed
Loan in a Committed Loan Notice or if the Borrower 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. Any 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 Eurodollar Rate
Loans.
If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate 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.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of
the
amount of its Applicable Percentage of the applicable
Committed
Loans, and if no timely notice of a conversion or continuation
is
provided by the Borrower, the Administrative Agent shall
notify
each Lender of the details of any automatic conversion to
Base
Rate Loans described in the preceding subsection. In the case
of
a Committed Borrowing denominated in Dollars, each Lender
shall
make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 12:00 p.m. 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 Borrower or the other
applicable Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of
the
Borrower on the books of Bank of America with the amount of
such
funds or
<PAGE> 24
(ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably
acceptable to) the Administrative Agent by the Borrower;
provided, however, that if, on the date the Committed Loan
Notice
with respect to such Borrowing is given by the Borrower,
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
Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate
Loan
may be continued or converted only on the last day of an
Interest
Period for such Eurodollar Rate Loan. During the existence of
a
Default, no Loans may be requested as, converted to or
continued
as Eurodollar Rate Loans without the consent of the Required
Lenders.
(d) The Administrative Agent shall promptly notify the
Borrower
and the Lenders of the interest rate applicable to any
Interest
Period for Eurodollar Rate Loans upon determination of such
interest rate. At any time that Base Rate Loans are
outstanding,
the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of 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 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 2.03, (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
for the account of the Borrower or its Subsidiaries, 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
Borrower or its Subsidiaries 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 Borrower for the issuance or amendment of
a
Letter of Credit shall be deemed to be a representation by
the
Borrower 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 Borrower's ability to obtain
Letters
of Credit shall be fully revolving, and accordingly the
Borrower
may, during the foregoing period, obtain Letters of Credit
to
replace Letters of Credit that have expired or
<PAGE> 25
that have been drawn upon and reimbursed. All 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 2.03(b)(iii), the expiry date of such
requested Letter of Credit (other than the Existing Letters
of
Credit or extensions or renewals thereof) 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 Letter of Credit Expiration 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 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 $50,000, in the case of a standby Letter of
Credit;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) such Letter of Credit (other than the Existing Letters
of
Credit or extensions or renewals thereof) contains any
provisions
for automatic reinstatement of the stated amount after any
drawing thereunder; or
(F) a default of any Lender's obligations to fund under
Section
2.03(c) exists or any Lender is at such time a Defaulting
Lender
hereunder, unless the L/C
<PAGE> 26
Issuer has entered into satisfactory
arrangements with the Borrower 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,
excluding, except with respect to the requirement under
Section
2.03(ii)(B) that the expiry date of such Letter of Credit
not
occur after the Letter of Credit Expiration Date, all
Existing
Letters 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 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 Borrower 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 Borrower. Such Letter
of
Credit Application must be received by the L/C Issuer and
the
Administrative Agent not later than 10:00 a.m. at least two
Business Days (or such other 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 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 Borrower shall furnish to the L/C Issuer
and
the Administrative Agent such other documents and
information
pertaining to such
<PAGE> 27
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
Borrower 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 Borrower, 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
Borrower (or the applicable Subsidiary) 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 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 Borrower 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 Borrower 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
clause (ii) or (iii) of Section 2.03(a) 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 Borrower
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
<PAGE> 28
L/C Issuer will also deliver to the Borrower 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 Borrower and the Administrative
Agent
thereof. Not later than 10:00 a.m. on the date of any payment
by
the L/C Issuer under a Letter of Credit (each such date, an
"Honor Date"), the Borrower shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the
amount
of such drawing. If the Borrower 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 (the "Unreimbursed Amount"), and the
amount
of such Lender's Applicable Percentage thereof. In such
event,
the Borrower 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 2.03(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
2.03(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 in an amount equal to its Applicable Percentage
of
the Unreimbursed Amount not later than 12:00 p.m. on the
Business
Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of Section
2.03(c)(iii),
each Lender that so makes funds available shall be deemed to
have
made a Base Rate Committed Loan to the Borrower in such
amount.
The Administrative Agent shall remit the funds so received to
the
L/C Issuer.
(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 Borrower 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
2.03(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 2.03.
(iv) Until each Lender funds its Committed Loan or L/C
Advance
pursuant to this Section 2.03(c) to reimburse the L/C Issuer
for
any amount drawn under any Letter
<PAGE> 29
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.
(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 2.03(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 Borrower, any Subsidiary 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 2.03(c) is subject to the conditions set forth in
Section
4.02 (other than delivery by the Borrower of a Committed
Loan
Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower 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 2.03(c) by the time specified in Section 2.03(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
greater of the Federal Funds Rate and a rate determined by
the
L/C Issuer in accordance with banking industry rules or
interbank
compensation. A certificate of the L/C Issuer submitted to
any
Lender (through the Administrative Agent) with respect to
any
amounts owing under this clause (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 2.03(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 Borrower 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) and 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 2.03(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
<PAGE> 30
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 Federal Funds Rate from time to time in
effect.
The obligations of the Lenders under this clause shall survive
the
payment in full of the Obligations and the termination of this
Agreement.
(e) Obligations Absolute. The obligation of the Borrower 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 Borrower 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 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 Borrower or any Subsidiary.
The Borrower 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 Borrower's
instructions or other irregularity, the Borrower will
immediately
notify the L/C Issuer. The Borrower 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 Borrower agree
that, in paying any drawing under a Letter of Credit, the
L/C
Issuer shall not have any responsibility to obtain any
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
<PAGE> 31
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 Borrower 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 Borrower'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 clauses (i) through (iv) of Section
2.03(e);
provided, however, that anything in such clauses to the
contrary
notwithstanding, the Borrower may have a claim against the
L/C
Issuer, and the L/C Issuer may be liable to the Borrower, to
the
extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower
which the Borrower 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. (i) Upon the request of the
Administrative
Agent, (A) 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 (B) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason
remains
outstanding, the Borrower shall, in each case, immediately
Cash
Collateralize the then Outstanding Amount of all L/C
Obligations.
(ii) Sections 2.05 and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For
purposes
of this Section 2.03, Section 2.05 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
Borrower 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 Borrower when a Letter of
Credit
is issued (including any such agreement
<PAGE> 32
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 Borrower 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") for each Letter of Credit equal to
the
Applicable Rate times 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 1.05. 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 separately
for
each period during such quarter that such Applicable Rate was
in
effect. Notwithstanding anything to the contrary contained
herein, upon the request of the Required Lenders, while any
Event
of Default exists, all Letter of Credit Fees shall accrue at
the
Default Rate.
(j) Fronting Fee and Documentary and Processing Charges
Payable
to L/C Issuer. The Borrower 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 equal to
0.125%
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 Borrower
and
the L/C Issuer, computed on 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
equal to 0.125%, computed on 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 1.05.
In
addition, the Borrower shall pay directly to the L/C Issuer
for
its own account, 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.
(l) Letters of Credit Issued for Subsidiaries.
Notwithstanding
that a Letter of Credit issued or outstanding hereunder is
in
support of any obligations of, or is for the account of, a
Subsidiary, the Borrower shall be obligated to reimburse the
L/C
Issuer hereunder for any and all drawings under such Letter
of
Credit. The Borrower hereby acknowledges that the issuance
of
<PAGE> 33
Letters of Credit for the account of Subsidiaries inures to
the
benefit of the Borrower, and that the Borrower's business
derives
substantial benefits from the businesses of such
Subsidiaries.
(m) Reporting of Letter of Credit Information. On (i) the
last
Business Day of each calendar month, and (ii) each date that
an
L/C Credit Extension occurs with respect to any Letter of
Credit,
the L/C Issuer shall deliver to the Administrative Agent a
report
in the form of Exhibit G hereto, appropriately completed with
the
information for every Letter of Credit issued by the L/C
Issuer
that is outstanding hereunder.
2.04 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
2.04,
to make loans (each such loan, a "Swing Line Loan") to the
Borrower 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
Borrower 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
Borrower may borrow under this Section 2.04, prepay under
Section
2.05, and reborrow under this Section 2.04. 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 Borrower'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 10:00 a.m.
on
the requested borrowing date, and shall specify (i) the amount
to
be borrowed, which shall be a minimum of $100,000, 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
Responsible Officer of the Borrower. Promptly after receipt
by
the Swing Line Lender of any telephonic Swing Line Loan
Notice,
the Swing Line Lender will confirm with the Administrative
Agent
(by telephone or in writing) that the Administrative Agent
has
also received such Swing Line Loan Notice and, if not, the
Swing
Line Lender will notify the Administrative Agent (by telephone
or
in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from
the
Administrative Agent (including at the request of any
Lender)
prior to 11:00
<PAGE> 34
a.m. on the date of the proposed Swing Line
Borrowing (A) directing the Swing Line Lender not to make
such
Swing Line Loan as a result of the limitations set forth in
the
proviso to the first sentence of Section 2.04(a), or (B) that
one
or more of the applicable conditions specified in Article IV
is
not then satisfied, then, subject to the terms and
conditions
hereof, the Swing Line Lender will, not later than 12:00 noon
on
the borrowing date specified in such Swing Line Loan Notice,
make
the amount of its Swing Line Loan available to the Borrower
either (i) at its office by crediting the account of the
Borrower
on the books of the Swing Line Lender in immediately
available
funds, or (ii) by wire transfer to any third party for which
the
Borrower has provided wiring instructions to the Swing Line
Lender not less than two Business Days prior to the related
borrowing date.
(c) Refinancing of Swing Line Loans.
(i) The Swing Line Lender at any time in its sole and
absolute
discretion may request, on behalf of the Borrower (which
hereby
irrevocably authorizes the Swing Line Lender to so request on
its
behalf), that each Lender make a Base Rate Committed Loan in
an
amount equal to such Lender's Applicable Percentage of the
amount
of Swing Line Loans then outstanding. Such request shall be
made
in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance
with
the requirements of Section 2.02, without regard to the
minimum
and multiples specified therein for the principal amount of
Base
Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in
Section
4.02. The Swing Line Lender shall furnish the Borrower with
a
copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent. Each
Lender
shall make an amount equal to its Applicable Percentage of
the
amount specified in such Committed Loan Notice available to
the
Administrative Agent in immediately available funds for the
account of the Swing Line Lender at the Administrative
Agent's
Office not later than 10:00 a.m. on the day specified in
such
Committed Loan Notice, whereupon, subject to Section
2.04(c)(ii),
each Lender that so makes funds available shall be deemed to
have
made a Base Rate Committed Loan to the Borrower in such
amount.
The Administrative Agent shall remit the funds so received to
the
Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be
refinanced
by such a Committed Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate Committed Loans
submitted
by the Swing Line Lender as set forth herein shall be deemed
to
be a request by the Swing Line Lender that each of the
Lenders
fund its risk participation in the relevant Swing Line Loan
and
each Lender's payment to the Administrative Agent for the
account
of the Swing Line Lender pursuant to Section 2.04(c)(i) shall
be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender
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)(i), the Swing Line Lender 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
<PAGE> 35
is immediately available to the Swing Line Lender at a rate
per
annum equal to the greater of the Federal Funds Rate and a
rate
determined by the Swing Line Lender in accordance with banking
rules
on interbank compensation. A certificate of the Swing Line
Lender
submitted to any Lender (through the Administrative Agent) with
respect
to any amounts owing under this clause (iii) shall be conclusive
absent
manifest error.
(iv) Each Lender's obligation to make Committed Loans or to
purchase and fund risk participations in Swing Line Loans
pursuant to 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 Swing
Line
Lender, the Borrower 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. No such funding of risk participations shall relieve
or
otherwise impair the obligation of the Borrower to repay
Swing
Line Loans, together with interest as provided herein.
(d) Repayment of Participations.
(i) At any time after any Lender has purchased and funded a
risk
participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the
Swing Line Lender will distribute to such Lender its
Applicable
Percentage of such payment (appropriately adjusted, in the
case
of interest payments, to reflect the period of time during
which
such Lender's risk participation was funde
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