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EXHIBIT 10.15
EXECUTION COPY
U.S. $1,000,000,000
364-DAY CREDIT AGREEMENT
Dated as of March 11, 2005
Among
MONSANTO COMPANY
as Borrower,
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders,
JPMORGAN CHASE BANK, N.A.
as Administrative Agent,
CITIBANK, N.A.
as Syndication Agent,
ABN AMRO BANK N.V.
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH
and
BANK OF AMERICA, N.A.
as Co-Documentation Agents
and
J.P. MORGAN SECURITIES INC. and CITIGROUP GLOBAL MARKETS
INC.
as Joint Lead Arrangers and Joint Bookrunners
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
<S> <C>
ARTICLE I DEFINITIONS AND ACCOUNTING
TERMS........................................................................1
SECTION 1.01. Certain Defined
Terms....................................................................1
SECTION 1.02. Computation of Time
Periods.............................................................11
SECTION 1.03. Accounting
Terms........................................................................11
ARTICLE II AMOUNTS AND TERMS OF THE
ADVANCES.....................................................................12
SECTION 2.01. The Revolving Credit
Advances...........................................................12
SECTION 2.02. Making the Revolving Credit
Advances....................................................12
SECTION 2.03. The Competitive Bid
Advances............................................................13
SECTION 2.04. Fees 16
SECTION 2.05. Termination or Reduction of the
Commitments.............................................16
SECTION 2.06. Repayment of Revolving Credit
Advances..................................................17
SECTION 2.07. Interest on Revolving Credit Advances; Regulation
D Compensation........................17
SECTION 2.08. Interest Rate
Determination.............................................................18
SECTION 2.09. Optional Conversion of Revolving Credit
Advances........................................19
SECTION 2.10. Optional Prepayments of Revolving Credit
Advances.......................................19
SECTION 2.11. Increased
Costs.........................................................................19
SECTION 2.12.
Illegality..............................................................................21
SECTION 2.13. Payments and
Computations...............................................................22
SECTION 2.14. Taxes 23
SECTION 2.15. Sharing of Payments,
Etc................................................................25
SECTION 2.16. Use of
Proceeds.........................................................................25
SECTION 2.17. Extension of Termination
Date...........................................................25
SECTION 2.18. Evidence of
Debt........................................................................27
ARTICLE III CONDITIONS TO EFFECTIVENESS AND
LENDING..............................................................28
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03.........................28
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing and Extension Date..............29
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing..................................29
SECTION 3.04. Determinations Under Section
3.01.......................................................30
ARTICLE IV REPRESENTATIONS AND
WARRANTIES........................................................................30
SECTION 4.01. Representations and Warranties of the
Borrower..........................................30
SECTION 4.02. Representation and Warranty of the
Lenders..............................................31
ARTICLE V COVENANTS OF THE
BORROWER..............................................................................31
SECTION 5.01. Affirmative
Covenants...................................................................31
SECTION 5.02. Negative
Covenants......................................................................33
SECTION 5.03. Financial
Covenant......................................................................34
i
<PAGE>
ARTICLE VI EVENTS OF
DEFAULT.....................................................................................34
SECTION 6.01. Events of
Default.......................................................................34
ARTICLE VII THE
AGENT............................................................................................36
SECTION 7.01. Authorization and
Action................................................................36
SECTION 7.02. Agent's Reliance,
Etc...................................................................37
SECTION 7.03. JPMorgan and
Affiliates.................................................................37
SECTION 7.04. Lender Credit
Decision..................................................................37
SECTION 7.05.
Indemnification.........................................................................37
SECTION 7.06. Successor
Agent.........................................................................38
SECTION 7.07. Other
Agents............................................................................38
ARTICLE VIII
MISCELLANEOUS.......................................................................................38
SECTION 8.01. Amendments,
Etc.........................................................................38
SECTION 8.02. Notices,
Etc............................................................................39
SECTION 8.03. No Waiver;
Remedies.....................................................................40
SECTION 8.04. Costs and
Expenses......................................................................40
SECTION 8.05. Right of
Set-off........................................................................41
SECTION 8.06. Binding
Effect..........................................................................41
SECTION 8.07. Assignments and
Participations..........................................................41
SECTION 8.08.
Confidentiality.........................................................................43
SECTION 8.09. Governing
Law...........................................................................44
SECTION 8.10. Execution in
Counterparts...............................................................44
SECTION 8.11. Jurisdiction,
Etc.......................................................................44
SECTION 8.12. USA Patriot Act
Notification............................................................44
SECTION 8.13. Waiver of Jury
Trial....................................................................44
</TABLE>
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Notice of Extension of Termination Date
ii
<PAGE>
364-DAY CREDIT AGREEMENT
Dated as of March 11, 2005
MONSANTO COMPANY, a Delaware corporation (the "Borrower"), the
banks,
financial institutions and other institutional lenders (the
"Initial Lenders")
listed on the signature pages hereof, JPMORGAN CHASE BANK, N.A.
("JPMorgan"), as
administrative agent (the "Agent") for the Lenders (as
hereinafter defined),
J.P. MORGAN SECURITIES INC. and CITIGROUP GLOBAL MARKETS INC.,
as joint lead
arrangers and joint bookrunners (the "Joint Lead Arrangers"),
CITIBANK, N.A., as
syndication agent, and ABN AMRO BANK N.V., THE BANK OF
TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH and BANK OF AMERICA, N.A., as co-documentation
agents, agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the
following terms shall have the following meanings (such meanings
to be equally
applicable to both the singular and plural forms of the terms
defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or
indirectly, controls, is controlled by or is under common
control with such
Person or is a director or officer of such Person. For purposes
of this
definition, the term "control" (including the terms
"controlling", "controlled
by" and "under common control with") of a Person means the
possession, direct or
indirect, of the power to vote 5% or more of the Voting Stock of
such Person or
to direct or cause the direction of the management and policies
of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means the account of the Agent maintained by
the Agent at
JPMorgan with its office at 1111 Fannin Street, 10th Floor,
Houston, Texas
77002, Account No. 304-289337, Attention: Ina Tjahjono.
"Aggregate Amount of Financing Outstanding" at any time means
the aggregate
amount of proceeds received in connection with a Permitted
Receivables
Financing, less (a) any amounts collected in connection with the
accounts
receivable sold, conveyed or otherwise transferred pursuant to
such financing
and (b) the amount of any defaulted accounts receivable the
uncollectibility of
which is a risk assumed by the transferee of such accounts
receivable.
"Applicable Lending Office" means, with respect to each Lender,
such
Lender's Domestic Lending Office in the case of a Base Rate
Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance and,
in the case of a Competitive Bid Advance, the office of such
Lender notified by
such Lender to the Agent as its Applicable Lending Office with
respect to such
Competitive Bid Advance.
"Applicable Margin" means, for Base Rate Advances, 0.0% per
annum (or, in
the case of Level 5 on and after the Term Loan Conversion Date,
0.350% per
annum) and, for Eurodollar Rate Advances as of any date, a
percentage per annum
determined by reference to the Public Debt Rating in effect on
such date as set
forth below:
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2
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-------------------------------------
--------------------------------
-------------------------------
Applicable Margin for Applicable Margin for
Eurodollar Rate Advances Eurodollar Rate Advances
Prior to Term Loan On and After Term Loan
Public Debt Rating S&P/Moody's Conversion Date Conversion
Date
-------------------------------------
--------------------------------
-------------------------------
Level 1
A+ or A1 0.200% 0.600%
-------------------------------------
--------------------------------
-------------------------------
Level 2
Lower than Level 1 but at least A
or A2 0.240% 0.650%
-------------------------------------
--------------------------------
-------------------------------
Level 3
Lower than Level 2 but at least A-
or A3 0.330% 0.750%
-------------------------------------
--------------------------------
-------------------------------
Level 4
Lower than Level 3 but at least
BBB+ or Baa1 0.535% 0.975%
-------------------------------------
--------------------------------
-------------------------------
Level 5
Lower than Level 4 0.850% 1.350%
-------------------------------------
--------------------------------
-------------------------------
</TABLE>
"Applicable Percentage" means, for each date prior to the Term
Loan
Conversion Date, a percentage per annum determined by reference
to the Public
Debt Rating in effect on such date as set forth below:
<TABLE>
<CAPTION>
<S> <C>
----------------------------------------------------
-------------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Percentage
----------------------------------------------------
-------------------------------------------------
Level 1
A+ or A1 0.050%
----------------------------------------------------
-------------------------------------------------
Level 2
Lower than Level 1 but at least A or A2 0.060%
----------------------------------------------------
-------------------------------------------------
Level 3
Lower than Level 2 but at least A- or A3 0.070%
----------------------------------------------------
-------------------------------------------------
Level 4
Lower than Level 3 but at least BBB+ or Baa1 0.090%
----------------------------------------------------
-------------------------------------------------
Level 5
Lower than Level 4 0.150%
----------------------------------------------------
-------------------------------------------------
</TABLE>
"Applicable Utilization Fee" means, for each date prior to the
Term Loan
Conversion Date that the aggregate principal amount of the
Advances exceeds 25%
of the aggregate Commitments, 0.100% per annum.
"Assignment and Acceptance" means an assignment and acceptance
entered into
by a Lender and an Eligible Assignee, and accepted by the Agent,
in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.17(c).
"Assumption Agreement" has the meaning specified in Section
2.17(c).
<PAGE>
3
"Base Rate" means a fluctuating interest rate per annum in
effect from time
to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by JPMorgan in New
York, New
York, from time to time, as JPMorgan's base rate; and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in
Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive
Bid
Borrowing.
"Business Day" means a day of the year on which banks are not
required or
authorized by law to close in New York City and, if the
applicable Business Day
relates to any Eurodollar Rate Advances, on which dealings are
carried on in the
London interbank market.
"Commitment" means as to any Lender (a) the amount set forth
opposite such
Lender's name on the signature pages hereof, (b) if such Lender
has become a
Lender hereunder pursuant to an Assumption Agreement, the amount
set forth in
such Assumption Agreement or (c) if such Lender has entered into
any Assignment
and Acceptance, the amount set forth for such Lender in the
Register maintained
by the Agent pursuant to Section 8.07(c), as such amount may be
reduced pursuant
to Section 2.05 or increased pursuant to Section 2.17.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as
part of a Competitive Bid Borrowing resulting from the
competitive bidding
procedure described in Section 2.03 and refers to a Fixed Rate
Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous
Competitive Bid Advances from each of the Lenders whose offer to
make one or
more Competitive Bid Advances as part of such borrowing has been
accepted by the
Borrower under the competitive bidding procedure described in
Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
of a
Competitive Bid Advance payable to the order of any Lender, in
substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of the
Borrower to such
Lender resulting from such Competitive Bid Advance made by such
Lender.
"Competitive Bid Reduction" has the meaning specified in Section
2.01.
"Confidential Information" means information that the Borrower
furnishes to
the Agent or any Lender which information is non-public,
confidential or
proprietary in nature, but does not include any such information
(a) that is or
becomes generally available to the public other than as the
result of an
unauthorized disclosure by the Agent or any Lender or (b) that
is or becomes
available to the Agent or such Lender from a source other than
the Borrower and
the Agent or such Lender had no reason to believe that such
source did not have
legitimate possession of such information or such source was
under any
obligation to keep such information confidential.
"Consenting Lender" has the meaning specified in Section
2.17(b).
"Consolidated" refers to the consolidation of accounts in
accordance with
GAAP.
<PAGE>
4
"Consolidated Net Worth" at any time, means the sum of the
capital stock
accounts (excluding capital stock subscribed for and unissued),
surplus accounts
(including earned surplus, capital surplus and the balance of
the current profit
and loss account not transferred to surplus) and other equity
accounts
(including accumulated currency adjustments, unrealized
investment or derivative
gains and losses, minimum pension liabilities and reserve for
ESOP debt
retirement) of the Borrower and its Subsidiaries appearing on
the most recent
Consolidated balance sheet of the Borrower and its Subsidiaries
delivered
pursuant to Section 5.01(f)(i) or (ii), as applicable, prepared
in accordance
with generally accepted accounting principles consistent with
those applied in
the preparation of the financial statements referred to in
Section 4.01(e).
"Convert", "Conversion" and "Converted" each refers to a
conversion of
Revolving Credit Advances of one Type into Revolving Credit
Advances of the
other Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication, (a) all
indebtedness of
such Person for borrowed money, (b) all obligations of such
Person for the
deferred purchase price of property or services (other than
trade payables not
overdue by more than 60 days incurred in the ordinary course of
such Person's
business), (c) all obligations of such Person evidenced by
notes, bonds,
debentures or other similar instruments, (d) all obligations of
such Person
created or arising under any conditional sale or other title
retention agreement
with respect to property acquired by such Person (even though
the rights and
remedies of the seller or lender under such agreement in the
event of default
are limited to repossession or sale of such property), (e) all
obligations of
such Person as lessee under leases that have been or should be,
in accordance
with GAAP, recorded as capital leases, (f) all obligations,
contingent or
otherwise, of such Person in respect of acceptances, letters of
credit or
similar extensions of credit, (g) all obligations of such Person
in respect of
Hedge Agreements, (h) all Debt of others referred to in clauses
(a) through (g)
above or clause (i) below guaranteed directly or indirectly in
any manner by
such Person, or in effect guaranteed directly or indirectly by
such Person
through an agreement (1) to pay or purchase such Debt or to
advance or supply
funds for the payment or purchase of such Debt, (2) to purchase,
sell or lease
(as lessee or lessor) property, or to purchase or sell services,
primarily for
the purpose of enabling the debtor to make payment of such Debt
or to assure the
holder of such Debt against loss, (3) to supply funds to or in
any other manner
invest in the debtor (including any agreement to pay for
property or services
irrespective of whether such property is received or such
services are rendered)
or (4) otherwise to assure a creditor against loss, and (i) all
Debt referred to
in clauses (a) through (h) above secured by (or for which the
holder of such
Debt has an existing right, contingent or otherwise, to be
secured by) any Lien
on property (including, without limitation, accounts and
contract rights) owned
by such Person, even though such Person has not assumed or
become liable for the
payment of such Debt, provided, that, if such Person has not
assumed or become
liable for the payment of such Debt, it shall be taken into
account only to the
extent of the book value or fair market value, whichever is
greater, of the
property subject to such Lien.
"Debt for Borrowed Money" of any Person means, without
duplication, (a) all
indebtedness of such Person for borrowed money, (b) all
obligations of such
Person evidenced by notes, bonds, debentures or other similar
instruments, (c)
all obligations of such Person as lessee under leases that have
been or should
be, in accordance with GAAP, recorded as capital leases, (d)
during the term of
a Permitted Receivables Financing, the Aggregate Amount of
Financing Outstanding
in connection with domestic accounts receivable pursuant to such
financing and
(e) all debt of others referred to in clauses (a) through (d)
above guaranteed
directly or indirectly in any manner by such Person.
<PAGE>
5
"Default" means any Event of Default or any event that would
constitute an
Event of Default but for the requirement that notice be given or
time elapse or
both.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Domestic Lending Office" means, with respect to any Lender, the
office of
such Lender specified as its "Domestic Lending Office" opposite
its name on
Schedule I hereto or in the Assumption Agreement or the
Assignment and
Acceptance pursuant to which it became a Lender, or such other
office of such
Lender as such Lender may from time to time specify to the
Borrower and the
Agent.
"EDGAR" means the electronic disclosure system for the receipt,
storage,
retrieval and dissemination of public documents filed with the
Securities and
Exchange Commission.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; and
(iii) any other Person approved by the Agent and, unless an
Event of Default has
occurred and is continuing at the time any assignment is
effected in accordance
with Section 8.07, the Borrower, such approval not to be
unreasonably withheld
or delayed; provided, however, that neither the Borrower nor an
Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter,
claim, notice of non-compliance or violation, notice of
liability or potential
liability, investigation, proceeding, consent order or consent
agreement
relating to any Environmental Law, Environmental Permit or
Hazardous Materials
or arising from alleged injury or threat of injury to health,
safety or the
environment, including, without limitation, (a) by any
governmental or
regulatory authority for enforcement, cleanup, removal,
response, remedial or
other actions or damages and (b) by any governmental or
regulatory authority or
any third party for damages, contribution, indemnification, cost
recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute,
law, ordinance, rule, regulation, code, order, judgment, decree
or written
judicial policy or guidance that is publicly available, in each
case relating to
pollution or protection of the environment, health and safety as
they relate to
Hazardous Materials or natural resources, including, without
limitation, those
relating to the use, handling, transportation, treatment,
storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number,
license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as
amended from time to time, and the regulations promulgated and
rulings issued
thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV
of ERISA
is a member of the Borrower's controlled group, or under common
control with the
Borrower, within the meaning of Section 414 of the Internal
Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event,
within the
meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day
notice requirement with respect to such event has been waived by
the PBGC; (b)
the application for a minimum funding waiver with respect to a
Plan; (c) the
<PAGE>
6
provision by the administrator of any Plan of a notice of intent
to terminate
such Plan pursuant to Section 4041(c) of ERISA (including any
such notice with
respect to a plan amendment referred to in Section 4041(e) of
ERISA); (d) the
cessation of operations at a facility of the Borrower or any
ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by
the Borrower or any ERISA Affiliate from a Multiple Employer
Plan during a plan
year for which it was a substantial employer, as defined in
Section 4001(a)(2)
of ERISA; (f) the conditions for the imposition of a lien under
Section 302(f)
of ERISA shall have been met with respect to any Plan; (g) the
adoption of an
amendment to a Plan requiring the provision of security to such
Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to
terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any
event or condition described in Section 4042 of ERISA that
constitutes grounds
for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term
in
Regulation D of the Board of Governors of the Federal Reserve
System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office
of such Lender specified as its "Eurodollar Lending Office"
opposite its name on
Schedule I hereto or in the Assumption Agreement or the
Assignment and
Acceptance pursuant to which it became a Lender (or, if no such
office is
specified, its Domestic Lending Office), or such other office of
such Lender as
such Lender may from time to time specify to the Borrower and
the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing,
an interest rate
per annum equal to the rate per annum (rounded upwards, if
necessary, to the
nearest 1/100 of 1%) appearing on Telerate Markets Page 3750 (or
any successor
page) as the London interbank offered rate for deposits in U.S.
dollars at
approximately 11:00 A.M. (London time) two Business Days prior
to the first day
of such Interest Period for a term comparable to such Interest
Period or, if for
any reason such rate is not available, the average (rounded
upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a
multiple) of the rate per annum at which deposits in U.S.
dollars are offered by
the principal office of each of the Reference Banks in London,
England to prime
banks in the London interbank market at 11:00 A.M. (London time)
two Business
Days before the first day of such Interest Period in an amount
substantially
equal to such Reference Bank's ratable share of an amount equal
to such
Revolving Credit Borrowing to be outstanding during such
Interest Period and for
a period equal to such Interest Period. If the Telerate Markets
Page 3750 (or
any successor page) is unavailable, the Eurodollar Rate for any
Interest Period
for each Advance comprising part of the same Revolving Credit
Borrowing shall be
determined by the Agent on the basis of applicable rates
furnished to and
received by the Agent from the Reference Banks two Business Days
before the
first day of such Interest Period, subject, however, to the
provisions of
Section 2.08.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided
in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all
Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same
Borrowing means the reserve percentage applicable two Business
Days before the
first day of such Interest Period under regulations issued from
time to time by
the Board of Governors of the Federal Reserve System (or any
successor) for
determining the maximum reserve requirement (including, without
limitation, any
emergency, supplemental or other marginal reserve requirement)
for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or
<PAGE>
7
assets consisting of or including Eurocurrency Liabilities (or
with respect to
any other category of liabilities that includes deposits by
reference to which
the interest rate on Eurodollar Rate Advances or LIBO Rate
Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section
6.01.
"Extension Date" has the meaning specified in Section
2.17(b).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per
annum equal for each day during such period to the weighted
average of the rates
on overnight Federal funds transactions with members of the
Federal Reserve
System arranged by Federal funds brokers, as published for such
day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day that
is a Business Day, the average of the quotations for such day on
such
transactions received by the Agent from three Federal funds
brokers of
recognized standing selected by it.
"Fixed Rate Advances" has the meaning specified in Section
2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum
products,
byproducts or breakdown products, radioactive materials,
asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any
other chemicals,
materials or substances designated, classified or regulated as
hazardous or
toxic or as a pollutant or contaminant under any Environmental
Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements,
interest rate future or option contracts, currency swap
agreements, currency
future or option contracts and other similar agreements.
"Information Memorandum" means the confidential information
memorandum
dated February 2005 (including all exhibits and attachments
thereto) used by the
Agent in connection with the syndication of the Commitments, as
up-dated from
time to time by any subsequent filings by the Borrower with the
Securities and
Exchange Commission.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part
of the same Revolving Credit Borrowing and each LIBO Rate
Advance comprising
part of the same Competitive Bid Borrowing, the period
commencing on the date of
such Eurodollar Rate Advance or LIBO Rate Advance or the date of
the Conversion
of any Base Rate Advance into such Eurodollar Rate Advance and
ending on the
last day of the period selected by the Borrower pursuant to the
provisions below
and, thereafter, with respect to Eurodollar Rate Advances, each
subsequent
period commencing on the last day of the immediately preceding
Interest Period
and ending on the last day of the period selected by the
Borrower pursuant to
the provisions below. The duration of each such Interest Period
shall be one,
two, three or six months or, if available to all Lenders, nine
months, as the
Borrower may, upon notice received by the Agent not later than
11:00 A.M. (New
York City time) on the third Business Day prior to the first day
of such
Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends
after
the Termination Date or, if the Revolving Credit Advances have
been
converted to a term loan pursuant to Section 2.06 prior to such
selection,
that ends after the Maturity Date;
<PAGE>
8
(ii) Interest Periods commencing on the same date for Eurodollar
Rate
Advances comprising part of the same Revolving Credit Borrowing
or for LIBO
Rate Advances comprising part of the same Competitive Bid
Borrowing shall
be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise
occur on a day other than a Business Day, the last day of such
Interest
Period shall be extended to occur on the next succeeding
Business Day,
provided, however, that, if such extension would cause the last
day of such
Interest Period to occur in the next following calendar month,
the last day
of such Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any Interest Period occurs on the
last
day of a calendar month or on a day of an initial calendar month
for which
there is no numerically corresponding day in the calendar month
that
succeeds such initial calendar month by the number of months
equal to the
number of months in such Interest Period, such Interest Period
shall end on
the last Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended
from time to time, and the regulations promulgated and rulings
issued
thereunder.
"Lenders" means the Initial Lenders, each Assuming Lender that
shall become
a party hereto pursuant to Section 2.17 and each Person that
shall become a
party hereto pursuant to Section 2.11, Section 2.12 or Section
8.07.
"Leverage Ratio" of the Borrower means the ratio of Consolidated
Debt for
Borrowed Money of the Borrower and its Subsidiaries to the sum
of Consolidated
Debt for Borrowed Money of the Borrower and its Subsidiaries
plus Consolidated
Net Worth.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances
comprising part of the same Competitive Bid Borrowing, an
interest rate per
annum equal to the rate per annum (rounded upward to the nearest
1/100 of 1%)
appearing on Telerate Markets Page 3750 (or any successor page)
as the London
interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such
Interest Period
for a term comparable to such Interest Period or, if for any
reason such rate is
not available, the average (rounded upward to the nearest whole
multiple of 1/16
of 1% per annum, if such average is not such a multiple) of the
rate per annum
at which deposits in U.S. dollars are offered by the principal
office of each of
the Reference Banks in London, England to prime banks in the
London interbank
market at 11:00 A.M. (London time) two Business Days before the
first day of
such Interest Period in an amount substantially equal to the
amount that would
be the Reference Banks' respective ratable shares of such
Borrowing if such
Borrowing were to be a Revolving Credit Borrowing to be
outstanding during such
Interest Period and for a period equal to such Interest Period.
If the Telerate
Markets Page 3750 (or any successor page) is unavailable, the
LIBO Rate for any
Interest Period for each LIBO Rate Advance comprising part of
the same
Competitive Bid Borrowing shall be determined by the Agent on
the basis of
applicable rates furnished to and received by the Agent from the
Reference Banks
two Business Days before the first day of such Interest Period,
subject,
however, to the provisions of Section 2.08.
"LIBO Rate Advance" has the meaning specified in Section
2.03(a)(i).
<PAGE>
9
"Lien" means any lien, security interest or other charge or
encumbrance of
any kind, or any other type of preferential arrangement having
the effect of
security, including, without limitation, the lien or retained
security title of
a conditional vendor.
"Material Adverse Change" means any material adverse change in
the
financial condition or results of operations of the Borrower or
the Borrower and
its Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the
financial condition or results of operations of the Borrower or
the Borrower and
its Consolidated Subsidiaries taken as a whole or (b) the
ability of the
Borrower to perform its obligations under this Agreement or any
Note.
"Material Subsidiary" means, at any time, a domestic
Consolidated
Subsidiary of the Borrower having (i) at least 10% of the total
Consolidated
assets of the Borrower and its Subsidiaries (determined as of
the last day of
the most recent fiscal quarter of the Borrower) or (ii) at least
10% of the
Consolidated net sales of the Borrower and its Subsidiaries for
the twelve month
period ending on the last day of the most recent fiscal quarter
of the Borrower.
"Maturity Date" means the earlier of (a) the first anniversary
of the
Termination Date and (b) the date of termination in whole of the
aggregate
Commitments pursuant to Section 2.05 or 6.01.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or
accruing an obligation to make contributions, or has within any
of the preceding
five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the
Borrower or any ERISA Affiliate and at least one Person other
than the Borrower
and the ERISA Affiliates or (b) was so maintained and in respect
of which the
Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069
of ERISA in the event such plan has been or were to be
terminated.
"Non-Consenting Lender" has the meaning specified in Section
2.17(b).
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Competitive Bid Borrowing" has the meaning specified
in Section
2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified
in Section
2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Receivables Financing" means any financing pursuant
to which the
Borrower or any Subsidiary of the Borrower may sell, convey, or
otherwise
transfer to a Receivables Subsidiary or any other Person, or
grant a security
interest in, any accounts receivable (and related assets) of the
Borrower or
such Subsidiary, provided that such financing shall be on
customary market terms
<PAGE>
10
and shall be with limited or no recourse to the Borrower and its
Subsidiaries
(other than the Receivables Subsidiary) except to the extent
customary for such
transactions.
"Person" means an individual, partnership, corporation
(including a
business trust), joint stock company, trust, unincorporated
association, joint
venture, limited liability company or other entity, or a
government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Public Debt Rating" means, as of any date, the lowest rating
that has been
most recently announced by either S&P or Moody's, as the
case may be, for any
class of non-credit enhanced long-term senior unsecured debt
issued by the
Borrower. For purposes of the foregoing, (a) if only one of
S&P and Moody's
shall have in effect a Public Debt Rating, the Applicable Margin
and the
Applicable Percentage shall be determined by reference to the
available rating;
(b) if neither S&P nor Moody's shall have in effect a Public
Debt Rating, the
Applicable Margin and the Applicable Percentage will be set in
accordance with
Level 5 under the definition of "Applicable Margin" or
"Applicable Percentage",
as the case may be; (c) if the ratings established by S&P
and Moody's shall fall
within different levels, the Applicable Margin and the
Applicable Percentage
shall be based upon the higher rating, provided that if the
lower of such
ratings is more than one level below the higher of such ratings,
then the
Applicable Margin and the Applicable Percentage shall be based
on the rating
that is one level above the lower of such ratings; (d) if any
rating established
by S&P or Moody's shall be changed, such change shall be
effective as of the
date on which such change is first announced publicly by the
rating agency
making such change; and (e) if S&P or Moody's shall change
the basis on which
ratings are established, each reference to the Public Debt
Rating announced by
S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by
S&P or Moody's, as the case may be.
"Receivables Subsidiary" means a bankruptcy-remote,
special-purpose wholly
owned Subsidiary formed in connection with a Permitted
Receivables Financing.
"Reference Banks" means JPMorgan, Citibank, N.A. and The Bank
of
Tokyo-Mitsubishi, Ltd., Chicago Branch; provided that the
Borrower may at any
time substitute another Lender as one of the Reference Banks,
but such
substitution shall terminate after 30 days if within such period
the Required
Lenders shall have notified the Agent of their objection to such
substitution.
"Register" has the meaning specified in Section 8.07(c).
"Required Lenders" means at any time Lenders owed more than 50%
of the then
aggregate unpaid principal amount of the Revolving Credit
Advances owing to
Lenders, or, if no such principal amount is then outstanding,
Lenders having
more than 50% of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as
part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a
Eurodollar Rate Advance (each of which shall be a "Type" of
Revolving Credit
Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous
Revolving Credit Advances of the same Type made by each of the
Lenders pursuant
to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower
payable to
the order of any Lender, in substantially the form of Exhibit
A-1 hereto,
<PAGE>
11
evidencing the aggregate indebtedness of the Borrower to such
Lender resulting
from the Revolving Credit Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The
McGraw-Hill Companies,
Inc.
"Single Employer Plan" means a single employer plan, as defined
in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of
the Borrower or
any ERISA Affiliate and no Person other than the Borrower and
the ERISA
Affiliates or (b) was so maintained and in respect of which the
Borrower or any
ERISA Affiliate could have liability under Section 4069 of ERISA
in the event
such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation, partnership,
joint
venture, limited liability company, trust or estate of which (or
in which) more
than 50% of (a) the issued and outstanding capital stock having
ordinary voting
power to elect a majority of the Board of Directors of such
corporation
(irrespective of whether at the time capital stock of any other
class or classes
of such corporation shall or might have voting power upon the
occurrence of any
contingency), (b) the interest in the capital or profits of such
limited
liability company, partnership or joint venture or (c) the
beneficial interest
in such trust or estate is at the time directly or indirectly
owned or
controlled by such Person, by such Person and one or more of its
other
Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Term Loan Conversion Date" means the Termination Date on which
all
Revolving Credit Advances outstanding on such date are converted
into a term
loan pursuant to Section 2.06.
"Term Loan Election" has the meaning specified in Section
2.06.
"Termination Date" means the earlier of (a) March 10, 2006,
subject to the
extension thereof pursuant to Section 2.17, and (b) the date of
termination in
whole of the Commitments pursuant to Section 2.05 or 6.01;
provided, however,
that the Termination Date of any Lender that is a Non-Consenting
Lender to any
requested extension pursuant to Section 2.17 shall be the
Termination Date in
effect immediately prior to the applicable Extension Date for
all purposes of
this Agreement.
"Voting Stock" means capital stock issued by a corporation, or
equivalent
interests in any other Person, the holders of which are
ordinarily, in the
absence of contingencies, entitled to vote for the election of
directors (or
persons performing similar functions) of such Person, even if
the right so to
vote has been suspended by the happening of such a
contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the
computation of periods of time from a specified date to a later
specified date,
the word "from" means "from and including" and the words "to"
and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically
defined herein shall be construed in accordance with generally
accepted
accounting principles consistent with those applied in the
preparation of the
financial statements referred to in Section 4.01(e) ("GAAP"),
notwithstanding
any changes to such principles which may become applicable
subsequent to the
date of such financial statements.
<PAGE>
12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees,
on the terms and conditions hereinafter set forth, to make
Revolving Credit
Advances to the Borrower from time to time on any Business Day
during the period
from the Effective Date until the Termination Date in an
aggregate amount not to
exceed at any time outstanding such Lender's Commitment,
provided that the
aggregate amount of the Commitments of the Lenders shall be
deemed used from
time to time to the extent of the aggregate amount of the
Competitive Bid
Advances then outstanding and such deemed use of the aggregate
amount of the
Commitments shall be allocated among the Lenders ratably
according to their
respective Commitments (such deemed use of the aggregate amount
of the
Commitments being a "Competitive Bid Reduction"). Each Revolving
Credit
Borrowing shall be in an aggregate amount of $10,000,000 or an
integral multiple
of $1,000,000 in excess thereof and shall consist of Revolving
Credit Advances
of the same Type made on the same day by the Lenders ratably
according to their
respective Commitments. Within the limits of each Lender's
Commitment, the
Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.10 and
reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving
Credit Borrowing shall be made on notice, given not later than
11:00 A.M. (New
York City time) on the third Business Day prior to the date of
the proposed
Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing
consisting of Eurodollar Rate Advances, or not later than 11:00
A.M. (New York
City time) on the date of the proposed Revolving Credit
Borrowing in the case of
a Revolving Credit Borrowing consisting of Base Rate Advances,
by the Borrower
to the Agent, which shall give to each Lender prompt notice
thereof by
telecopier. Each such notice of a Revolving Credit Borrowing (a
"Notice of
Revolving Credit Borrowing") shall be by telephone, confirmed
immediately in
writing, or telecopier, in substantially the form of Exhibit B-1
hereto,
specifying therein the requested (i) date of such Borrowing,
(ii) Type of
Advances comprising such Revolving Credit Borrowing, (iii)
aggregate amount of
such Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for
each such Advance. Each Lender shall, before 1:00 P.M. (New York
City time) on
the date of such Revolving Credit Borrowing, make available for
the account of
its Applicable Lending Office to the Agent at the Agent's
Account, in same day
funds, such Lender's ratable portion of such Revolving Credit
Borrowing. After
the Agent's receipt of such funds and upon fulfillment of the
applicable
conditions set forth in Article III, the Agent will make such
funds available to
the Borrower that requested such Revolving Credit Borrowing at
the Agent's
address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i)
the Borrower may not select Eurodollar Rate Advances for any
Revolving Credit
Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less
than $10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate
Advances shall then be suspended pursuant to Section 2.08 or
2.12 and (ii) the
Eurodollar Rate Advances may not be outstanding as part of more
than eight
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and
binding on the Borrower. In the case of any Revolving Credit
Borrowing that the
related Notice of Revolving Credit Borrowing specifies is to be
comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each
Lender against any
loss, cost or expense incurred by such Lender as a result of any
failure to
fulfill on or before the date specified in such Notice of
Revolving Credit
Borrowing for such Revolving Credit Borrowing the applicable
conditions set
forth in Article III, including, without limitation, any loss
(excluding loss of
anticipated profits), cost or expense incurred by reason of the
liquidation or
<PAGE>
13
reemployment of deposits or other funds acquired by such Lender
to fund the
Revolving Credit Advance to be made by such Lender as part of
such Revolving
Credit Borrowing when such Revolving Credit Advance, as a result
of such
failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the
date of any Revolving Credit Borrowing that such Lender will not
make available
to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing,
the Agent may assume that such Lender has made such portion
available to the
Agent on the date of such Revolving Credit Borrowing in
accordance with
subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such
assumption, make available to the Borrower on such date a
corresponding amount.
If and to the extent that such Lender shall not have so made
such ratable
portion available to the Agent, such Lender and the Borrower
severally agree to
repay to the Agent forthwith on demand such corresponding amount
together with
interest thereon, for each day from the date such amount is made
available to
the Borrower until the date such amount is repaid to the Agent,
at (i) in the
case of the Borrower, the interest rate applicable at the time
to Revolving
Credit Advances comprising such Revolving Credit Borrowing and
(ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall
repay to the Agent
such corresponding amount, such amount so repaid shall
constitute such Lender's
Revolving Credit Advance as part of such Borrowing for purposes
of this
Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be
made by it as part of any Revolving Credit Borrowing shall not
relieve any other
Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance
on the date of such Borrowing, but no Lender shall be
responsible for the
failure of any other Lender to make the Revolving Credit Advance
to be made by
such other Lender on the date of any Revolving Credit
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally
agrees that the Borrower may make Competitive Bid Borrowings
under this Section
2.03 from time to time on any Business Day during the period
from the date
hereof until the date occurring 30 days prior to the Termination
Date in the
manner set forth below; provided that, following the making of
each Competitive
Bid Borrowing, the aggregate amount of the Advances then
outstanding shall not
exceed the aggregate amount of the Commitments of the Lenders
(computed without
regard to any Competitive Bid Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this
Section 2.03 by delivering to the Agent, by telecopier, a notice
of a
Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in
substantially the form of Exhibit B-2 hereto, specifying therein
the
requested (v) date of such proposed Competitive Bid Borrowing,
(w)
aggregate amount of such proposed Competitive Bid Borrowing, (x)
in the
case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances,
Interest Period, or in the case of a Competitive Bid Borrowing
consisting
of Fixed Rate Advances, maturity date for repayment of each
Fixed Rate
Advance to be made as part of such Competitive Bid Borrowing
(which
maturity date may not be earlier than the date occurring 30 days
after the
date of such Competitive Bid Borrowing or later than the
Termination Date),
(y) interest payment date or dates relating thereto, and (z)
other terms
(if any) to be applicable to such Competitive Bid Borrowing, not
later than
10:00 A.M. (New York City time) (A) at least one Business Day
prior to the
date of the proposed Competitive Bid Borrowing, if the Borrower
shall
specify in the Notice of Competitive Bid Borrowing that the
rates of
interest to be offered by the Lenders shall be fixed rates per
annum (the
Advances comprising any such Competitive Bid Borrowing being
referred to
herein as "Fixed Rate Advances") and (B) at least five Business
Days prior
to the date of the proposed Competitive Bid Borrowing, if the
Borrower
shall instead specify in the Notice of Competitive Bid Borrowing
that the
rates of interest be offered by the Lenders are to be based on
the LIBO
<PAGE>
14
Rate (the Advances comprising such Competitive Bid Borrowing
being referred
to herein as "LIBO Rate Advances"). Each Notice of Competitive
Bid
Borrowing shall be irrevocable and binding on the Borrower. The
Agent shall
in turn promptly notify each Lender of each request for a
Competitive Bid
Borrowing received by it from the Borrower by sending such
Lender a copy of
the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so,
irrevocably offer to make one or more Competitive Bid Advances
to the
Borrower as part of such proposed Competitive Bid Borrowing at a
rate or
rates of interest specified by such Lender in its sole
discretion, by
notifying the Agent (which shall give prompt notice thereof to
the
Borrower), before 9:30 A.M. (New York City time) on the date of
such
proposed Competitive Bid Borrowing, in the case of a Competitive
Bid
Borrowing consisting of Fixed Rate Advances and before 10:00
A.M. (New York
City time) three Business Days before the date of such proposed
Competitive
Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of
LIBO Rate Advances, of the minimum amount and maximum amount of
each
Competitive Bid Advance which such Lender would be willing to
make as part
of such proposed Competitive Bid Borrowing (which amounts may,
subject to
the proviso to the first sentence of this Section 2.03(a),
exceed such
Lender's Commitment, if any), the rate or rates of interest
therefor and
such Lender's Applicable Lending Office with respect to such
Competitive
Bid Advance; provided that if the Agent in its capacity as a
Lender shall,
in its sole discretion, elect to make any such offer, it shall
notify the
Borrower of such offer at least 30 minutes before the time and
on the date
on which notice of such election is to be given to the Agent by
the other
Lenders. If any Lender shall elect not to make such an offer,
such Lender
shall so notify the Agent, at least 30 minutes prior to the time
at which
notice of such election is to be given to the Agent by the other
Lenders,
and such Lender shall not be obligated to, and shall not, make
any
Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided
that the failure by any Lender to give such notice shall not
cause such
Lender to be obligated to make any Competitive Bid Advance as
part of such
proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 10:30 A.M. (New York
City
time) on the date of such proposed Competitive Bid Borrowing, in
the case
of a Competitive Bid Borrowing consisting of Fixed Rate Advances
and before
11:00 A.M. (New York City time) three Business Days before the
date of such
proposed Competitive Bid Borrowing, in the case of a Competitive
Bid
Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice
to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders
pursuant to paragraph (ii) above, in its sole discretion, by
giving notice
to the Agent of the amount of each Competitive Bid Advance
(which amount
shall be equal to or greater than the minimum amount, and equal
to or less
than the maximum amount, notified to the Borrower by the Agent
on behalf of
such Lender for such Competitive Bid Advance pursuant to
paragraph (ii)
above) to be made by each Lender as part of such Competitive Bid
Borrowing,
and reject any remaining offers made by Lenders pursuant to
paragraph (ii)
above by giving the Agent notice to that effect. The Borrower
shall accept
the offers made by any Lender or Lenders to make Competitive Bid
Advances
in order of the lowest to the highest rates of interest offered
by such
Lenders. If two or more Lenders have offered the same interest
rate, the
amount to be borrowed at such interest rate will be allocated
among such
Lenders in proportion to the amount that each such Lender
offered at such
interest rate.
<PAGE>
15
(iv) If the Borrower notifies the Agent that such Competitive
Bid
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent
shall give prompt notice thereof to the Lenders and such
Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any
Lender or Lenders pursuant to paragraph (iii)(y) above, the
Agent shall in
turn promptly notify (A) each Lender that has made an offer as
described in
paragraph (ii) above, of the date and aggregate amount of such
Competitive
Bid Borrowing and whether or not any offer or offers made by
such Lender
pursuant to paragraph (ii) above have been accepted by the
Borrower, (B)
each Lender that is to make a Competitive Bid Advance as part of
such
Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to
be made by such Lender as part of such Competitive Bid
Borrowing, and (C)
each Lender that is to make a Competitive Bid Advance as part of
such
Competitive Bid Borrowing, upon receipt, that the Agent has
received forms
of documents appearing to fulfill the applicable conditions set
forth in
Article III. Each Lender that is to make a Competitive Bid
Advance as part
of such Competitive Bid Borrowing shall, before 12:00 noon (New
York City
time) on the date of such Competitive Bid Borrowing specified in
the notice
received from the Agent pursuant to clause (A) of the preceding
sentence or
any later time when such Lender shall have received notice from
the Agent
pursuant to clause (C) of the preceding sentence, make available
for the
account of its Applicable Lending Office to the Agent at the
Agent's
Account, in same day funds, such Lender's portion of such
Competitive Bid
Borrowing. Upon fulfillment of the applicable conditions set
forth in
Article III and after receipt by the Agent of such funds, the
Agent will
make such funds available to the Borrower at the Agent's address
referred
to in Section 8.02. Promptly after each Competitive Bid
Borrowing the Agent
will notify each Lender of the amount of the Competitive Bid
Borrowing, the
consequent Competitive Bid Reduction and the dates upon which
such
Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of
the offers made by any Lender or Lenders pursuant to paragraph
(iii)(y)
above, such notice of acceptance shall be irrevocable and
binding on the
Borrower. The Borrower shall indemnify each Lender against any
loss, cost
or expense incurred by such Lender as a result of any failure to
fulfill on
or before the date specified in the related Notice of
Competitive Bid
Borrowing for such Competitive Bid Borrowing the applicable
conditions set
forth in Article III, including, without limitation, any loss
(excluding
loss of anticipated profits), cost or expense incurred by reason
of the
liquidation or reemployment of deposits or other funds acquired
by such
Lender to fund the Competitive Bid Advance to be made by such
Lender as
part of such Competitive Bid Borrowing when such Competitive Bid
Advance,
as a result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of
$10,000,000 or an integral multiple of $1,000,000 in excess
thereof and,
following the making of each Competitive Bid Borrowing, the
Borrower shall be in
compliance with the limitation set forth in the proviso to the
first sentence of
subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03,
the Borrower may from time to time borrow under this Section
2.03, repay or
prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03,
provided that a Competitive Bid Borrowing shall not be made
within three
Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrower shall repay to the Agent for the account of
each Lender
that has made a Competitive Bid Advance, on the maturity date of
each
Competitive Bid Advance (such maturity date being that specified
by the Borrower
for repayment of such Competitive Bid Advance in the related
Notice of
Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and
<PAGE>
16
provided in the Competitive Bid Note evidencing such Competitive
Bid Advance),
the then unpaid principal amount of such Competitive Bid
Advance. No Borrower
shall have any right to prepay any principal amount of any
Competitive Bid
Advance unless, and then only on the terms, specified by the
Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid
Borrowing
delivered pursuant to subsection (a)(i) above and set forth in
the Competitive
Bid Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each
Competitive Bid Advance from the date of such Competitive Bid
Advance to the
date the principal amount of such Competitive Bid Advance is
repaid in full, at
the rate of interest for such Competitive Bid Advance specified
by the Lender
making such Competitive Bid Advance in its notice with respect
thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest
payment date or
dates specified by the Borrower for such Competitive Bid Advance
in the related
Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such
Competitive Bid
Advance. Upon the occurrence and during the continuance of an
Event of Default
under Section 6.01(a), the Borrower shall pay interest on the
amount of unpaid
principal of and interest on each Competitive Bid Advance owing
to a Lender,
payable in arrears on the date or dates interest is payable
thereon, at a rate
per annum equal at all times to 2% per annum above the rate per
annum required
to be paid on such Competitive Bid Advance under the terms of
the Competitive
Bid Note evidencing such Competitive Bid Advance unless
otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid
Advance made as part of a Competitive Bid Borrowing shall be
evidenced by a
separate Competitive Bid Note payable to the order of the Lender
making such
Competitive Bid Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to pay
to the
Agent for the account of each Lender a facility fee on the
aggregate amount of
such Lender's Commitment from the Effective Date in the case of
each Initial
Lender and from the later of the Effective Date and the
effective date specified
in the Assumption Agreement or the Assignment and Acceptance
pursuant to which
it became a Lender in the case of each other Lender until the
Termination Date
at a rate per annum equal to the Applicable Percentage in effect
from time to
time, payable in arrears quarterly on the last day of each
March, June,
September and December commencing June 30, 2005, and on the
Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its
own account
such fees as may from time to time be agreed between the
Borrower and the Agent,
and shall pay to each Joint Lead Arranger for its own account
such fees and as
may from time to time be agreed between the Borrower and such
Joint Lead
Arranger.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional.
The Borrower shall have the right, upon at least three Business
Days' notice to
the Agent, to terminate in whole or reduce ratably in part the
unused portions
of the respective Commitments of the Lenders, provided that each
partial
reduction shall be in the aggregate amount of $10,000,000 or an
integral
multiple of $1,000,000 in excess thereof and provided further
that the aggregate
amount of the Commitments of the Lenders shall not be reduced to
an amount that
is less than the aggregate principal amount of the Competitive
Bid Advances then
outstanding.
(b) Mandatory. On the Termination Date, if the Borrower has made
the Term
Loan Election in accordance with Section 2.06 prior to such
date, and from time
to time thereafter upon each prepayment of the Revolving Credit
Advances, the
Commitments of the Lenders shall be automatically and
permanently reduced on a
pro rata basis by an amount equal to the amount by which (i) the
aggregate
<PAGE>
17
Commitments immediately prior to such reduction exceeds (ii) the
aggregate
unpaid principal amount of all Revolving Credit Advances
outstanding at such
time.
SECTION 2.06. Repayment of Revolving Credit Advances. The
Borrower shall,
subject to the next succeeding sentence, repay to the Agent for
the ratable
account of the Lenders on the Termination Date the aggregate
principal amount of
the Revolving Credit Advances then outstanding. The Borrower
may, upon not less
than 15 days' notice to the Agent, elect (the "Term Loan
Election") to convert
all of the Revolving Credit Advances outstanding on the
Termination Date in
effect at such time into a term loan which the Borrower shall
repay in full
ratably to the Lenders on the Maturity Date; provided that the
Term Loan
Election may not be exercised if a Default has occurred and is
continuing on the
date of notice of the Term Loan Election or on the date on which
the Term Loan
Election is to be effected. All Revolving Credit Advances
converted into a term
loan pursuant to this Section 2.06 shall continue to constitute
Revolving Credit
Advances except that the Borrower may not reborrow pursuant to
Section 2.01
after all or any portion of such Revolving Credit Advances have
been prepaid
pursuant to Section 2.10.
SECTION 2.07. Interest on Revolving Credit Advances; Regulation
D
Compensation. (a) Scheduled Interest. The Borrower shall pay
interest on the
unpaid principal amount of each Revolving Credit Advance owing
to each Lender
from the date of such Revolving Credit Advance until such
principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit
Advance is a Base Rate Advance, a rate per annum equal at all
times to the
sum of (x) the Base Rate in effect from time to time plus (y)
the
Applicable Margin in effect from time to time plus (z) the
Applicable
Utilization Fee, if any, in effect from time to time, payable in
arrears
quarterly on the last day of each March, June, September and
December,
during such periods and on the date such Base Rate Advance shall
be
Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving
Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all
times during each Interest Period for such Revolving Credit
Advance to the
sum of (x) the Eurodollar Rate for such Interest Period for such
Revolving
Credit Advance plus (y) the Applicable Margin in effect from
time to time
plus (z) the Applicable Utilization Fee, if any, in effect from
time to
time, payable in arrears on the last day of such Interest Period
and, if
such Interest Period has a duration of more than three months,
on each day
that occurs during such Interest Period every three months from
the first
day of such Interest Period and on the date such Eurodollar Rate
Advance
shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an
Event of Default under Section 6.01(a), the Borrower shall pay
interest on (i)
the unpaid principal amount of each Revolving Credit Advance
made to it owing to
each Lender, payable in arrears on the dates referred to in
clause (a) above, at
a rate per annum equal at all times to 2% per annum above the
rate per annum
required to be paid on such Revolving Credit Advance pursuant to
clause (a)
above and (ii) to the fullest extent permitted by law, the
amount of any
interest, fee or other amount payable hereunder that is not paid
when due, from
the date such amount shall be due until such amount shall be
paid in full,
payable in arrears on the date such amount shall be paid in full
and on demand,
at a rate per annum equal at all times to 2% per annum above the
rate per annum
required to be paid on Base Rate Advances pursuant to clause
(a)(i) above.
(c) Regulation D Compensation. Each Lender that is subject to
reserve
requirements of the Board of Governors of the Federal Reserve
System (or any
successor) may require the Borrower to pay, contemporaneously
with each payment
<PAGE>
18
of interest on Eurodollar Rate Advances or LIBO Rate Advances,
additional
interest on the related Eurodollar Rate Advances or LIBO Rate
Advances, as
applicable, of such Lender at the rate per annum equal to the
excess of (i)(A)
the applicable Eurodollar Rate or LIBO Rate, divided by (B) one
minus the
Eurodollar Rate Reserve Percentage over (ii) the rate specified
in clause
(i)(A). Any Lender wishing to require payment of such additional
interest shall
so notify the Agent and the Borrower, in which case such
additional interest on
the Eurodollar Rate Advances or LIBO Rate Advances, as
applicable, of such
Lender shall be payable to such Lender at the place indicated in
such notice
with respect to each Interest Period commencing after the giving
of such notice.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees
to furnish to the Agent timely information for the purpose of
determining each
Eurodollar Rate and each LIBO Rate. If any one or more of the
Reference Banks
shall not furnish such timely information to the Agent for the
purpose of
determining any such interest rate, the Agent shall determine
such interest rate
on the basis of timely information furnished by the remaining
Reference Banks.
The Agent shall give prompt notice to the Borrower and the
Lenders of the
applicable interest rate determined by the Agent for purposes of
Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each
Reference Bank for
the purpose of determining the interest rate under Section
2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders
notify the Agent that the Eurodollar Rate for any Interest
Period for such
Advances will not adequately reflect the cost to such Required
Lenders of
making, funding or maintaining their respective Eurodollar Rate
Advances for
such Interest Period, the Agent shall forthwith so notify the
Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the
last day of the then existing Interest Period therefor, Convert
into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or to
Convert Revolving
Credit Advances into, Eurodollar Rate Advances shall be
suspended until the
Agent shall notify the Borrower and the Lenders that the
circumstances causing
such suspension no longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest
Period for any Eurodollar Rate Advances in accordance with the
provisions
contained in the definition of "Interest Period" in Section
1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such
Advances will
automatically, on the last day of the then existing Interest
Period therefor,
Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount
of
Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment
or prepayment or otherwise, to less than $10,000,000, such
Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event
of Default,
(i) each Eurodollar Rate Advance will automatically, on the last
day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate
Advances shall be suspended.
(f) If Telerate Markets Page 3750 (or any successor page) is
unavailable
and fewer than two Reference Banks furnish timely information to
the Agent for
determining the Eurodollar Rate or LIBO Rate for any Eurodollar
Rate Advances or
LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that
the interest rate cannot be determined for such Eurodollar Rate
Advances,
<PAGE>
19
(ii) with respect to Eurodollar Rate Advances, each such Advance
will
automatically, on the last day of the then existing Interest
Period
therefor, Convert into a Base Rate Advance (or if such Advance
is then a
Base Rate Advance, will continue as a Base Rate Advance),
and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances
or LIBO Rate Advances, or to Convert Revolving Credit Advances
into,
Eurodollar Rate Advances shall be suspended until the Agent
shall notify
the Borrower and the Lenders that the circumstances causing such
suspension
no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit Advances.
The
Borrower may on any Business Day, upon notice given to the Agent
not later than
11:00 A.M. (New York City time) on the third Business Day prior
to the date of
the proposed Conversion and subject to the provisions of
Sections 2.08 and 2.12,
Convert all Revolving Credit Advances of one Type comprising the
same Borrowing
into Revolving Credit Advances of the other Type; provided,
however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made
only on the last day of an Interest Period for such Eurodollar
Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in
an amount not less than the minimum amount specified in Section
2.02(b) and no
Conversion of any Revolving Credit Advances shall result in more
separate
Revolving Credit Borrowings than permitted under Section
2.02(b). Each such
notice of a Conversion shall, within the restrictions specified
above, specify
(i) the date of such Conversion, (ii) the Revolving Credit
Advances to be
Converted, and (iii) if such Conversion is into Eurodollar Rate
Advances, the
duration of the initial Interest Period for each such Advance.
Each notice of
Conversion shall be irrevocable and binding on the Borrower
giving such notice.
SECTION 2.10. Optional Prepayments of Revolving Credit Advances.
The
Borrower may, in the case of Eurodollar Rate Advances, upon at
least two
Business Days' notice to the Agent and, in the case of Base Rate
Advances, upon
notice to the Agent not later than 10:00 A.M. (New York City
time) on the date
of the proposed prepayment, stating in each case the proposed
date and aggregate
principal amount of the prepayment, and if such notice is given
the Borrower
shall, prepay the outstanding principal amount of the Revolving
Credit Advances
comprising part of the same Revolving Credit Borrowing in whole
or ratably in
part, together with accrued interest to the date of such
prepayment on the
principal amount prepaid; provided, however, that (x) each
partial prepayment
shall be in an aggregate principal amount of $10,000,000 or an
integral multiple
of $1,000,000 in excess thereof and (y) in the event of any such
prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either (i) the
introduction
of or any change in or in the interpretation of any law or
regulation or (ii)
the compliance with any guideline or request from any central
bank or other
governmental authority (whether or not having the force of law),
there shall be
any increase in the cost to any Lender of agreeing to make or
making, funding or
maintaining Eurodollar Rate Advances or LIBO Rate Advances
(excluding for
purposes of this Section 2.11 any such increased costs resulting
from (i) Taxes
or Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the
basis of taxation of overall net income or overall gross income
by the United
States or by the foreign jurisdiction or state under the laws of
which such
Lender is organized or has its Applicable Lending Office or any
political
subdivision thereof), then such Lender may from time to time
give notice of such
circumstances to the Borrower (with a copy of such notice to the
Agent);
provided, however, that each Lender agrees, before giving any
such notice, to
use its reasonable efforts (consistent with its internal policy
and legal and
regulatory restrictions) to designate a different Applicable
Lending Office if
the making of such designation would avoid the need for, or
reduce the amount
of, such increased costs and would not be disadvantageous to
such Lender. The
amount sufficient to compensate such Lender in light of such
increase in costs
to such Lender or any corporation controlling such Lender shall
be determined by
<PAGE>
20
such Lender in good faith on a basis that allocates the amounts
sufficient to
compensate such Lender in light of such increase ratably among
all applicable
Advances. A certificate specifying the event referred to in this
Section
2.11(a), the amount sufficient to compensate such Lender and the
basis of its
calculations (which shall be reasonable), submitted in good
faith to the
Borrower and the Agent by such Lender, shall be conclusive and
binding for all
purposes, absent manifest error. Each Lender agrees to provide
reasonably prompt
notice to the Borrower of the occurrence of any event referred
to in the first
sentence of this Section 2.11(a).
(b) If any Lender determines that compliance with any law or
regulation or
any guideline or request from any central bank or other
governmental authority
(whether or not having the force of law) after the date hereof
affects or would
affect the amount of capital required or expected to be
maintained by such
Lender or any corporation controlling such Lender and that the
amount of such
capital is increased by or based upon the existence of such
Lender's commitment
to lend hereunder and other commitments of this type, then, such
Lender may from
time to time give notice of such circumstances to the Borrower
(with a copy of
such notice to the Agent); provided, however, that each Lender
agrees, before
giving any such notice, to use its reasonable efforts
(consistent with its
internal policy and legal and regulatory restrictions) to
designate a different
Applicable Lending Office if the making of such designation
would avoid the need
for, or reduce the amount of, the cost to such Lender of such
increase in the
amount of capital maintained by such Lender and would not be
disadvantageous to
such Lender. The amount sufficient to compensate such Lender in
light of such
increase in capital maintained by such Lender or any corporation
controlling
such Lender shall be determined by such Lender in good faith to
the extent that
such Lender reasonably determines such increase in capital to be
allocable to
the existence of such Lender's commitment to lend hereunder. A
certificate
specifying the event referred to in this Section 2.11(b), the
amount sufficient
to compensate such Lender and the basis of its calculations
(which shall be
reasonable), submitted in good faith to the Borrower and the
Agent by such
Lender, shall be conclusive and binding for all purposes, absent
manifest error.
Each Lender agrees to provide reasonably prompt notice to the
Borrower of the
occurrence of any event referred to in the first sentence of
this Section
2.11(b).
(c) The Borrower shall, within five days of receiving a notice
from any
Lender pursuant to clause (a) or (b) of this Section 2.11, elect
(and shall
notify such Lender and the Agent of such election) to:
(i) pay to the Agent for the account of such Lender, from time
to time
commencing on the date of notice by such Lender and as specified
by such
Lender, (A) the amount such Lender has set forth in the
certificate which
such Lender has delivered to the Borrower pursuant to clause (a)
of this
Section 2.11 or (B) the amount such Lender has set forth in the
certificate
which such Lender has delivered to the Borrower pursuant to
clause (b) of
this Section 2.11, as the case may be; or
(ii) terminate such Lender's Commitment on a date which shall
be
specified in the notice sent by the Borrower, and such Lender's
Commitment
shall terminate on such date; provided, however, that the
aggregate amount
of the Commitments of the Lenders shall not be reduced, as a
result of any
such termination, to an amount that is less than the sum of the
aggregate
principal amount of the Advances then outstanding; provided,
further, that
such termination shall not be effective if, after giving effect
to such
termination, the aggregate amount of the Commitments so
terminated or
assigned under this Section 2.11 and Section 2.12(b) during the
term of
this Agreement would exceed 25% of the aggregate amount of the
Commitments
as of the Effective Date; and provided further, that upon
termination of a
Lender's Commitment under this Section 2.11(c)(ii), the Borrower
shall on
the date such termination becomes effective pay, prepay or cause
to be
<PAGE>
21
prepaid the aggregate principal amount of all Advances owing to
such
Lender, together with accrued interest thereon to the date of
payment of
such principal amount, all facility fees and other fees payable
to such
Lender and all other amounts payable to such Lender under this
Agreement
(including, but not limited to, any increased costs or other
additional
amounts (computed in accordance with this Section 2.11), and any
Taxes,
incurred by such Lender prior to the effective date of such
termination and
amounts payable under Section 8.04(a)). Upon such payments and
prepayments,
the obligations of such Lender hereunder, by the provisions
hereof, shall
be released and discharged. Such Lender's rights under Sections
2.11, 2.14
and 8.04(b), and its obligations under Section 7.05, shall
survive such
release and discharge as to matters occurring prior to date of
such
termination; or
(iii) require that such Lender assign to the Borrower's
designated
assignee or assignees, in accordance with the terms of Section
8.07, all
Advances then owing to such Lender and all rights and
obligations of such
Lender hereunder; provided that (A) each such assignment shall
be either an
assignment of all of the rights and obligations of the assigning
Lender
under this Agreement or an assignment of a portion of such
rights and
obligations made concurrently with another such assignment or
assignments
which together cover all of the rights and obligations of the
assigning
Lender under this Agreement, (B) no Lender shall be obligated to
make any
such assignment as a result of a demand by the Borrower pursuant
to this
Section 2.11(c) unless and until such Lender shall have received
one or
more payments from either the Borrower or one or more assignees
in an
aggregate amount at least equal to the aggregate outstanding
principal
amount of all Advances owing to such Lender, together with
accrued interest
thereon to the date of payment of such principal amount, all
facility fees
and other fees payable to such Lender and all other amounts
payable to such
Lender under this Agreement (including, but not limited to, any
increased
costs or other additional amounts (computed in accordance with
this Section
2.11), and any Taxes, incurred by such Lender prior to the
effective date
of such assignment and amounts payable under Section 8.04(a))
and (C) each
such assignment shall be made pursuant to an Assignment and
Acceptance;
provided, however, that such assignment shall not be effective
if, after
giving effect to such assignment, the aggregate amount of the
Commitments
so assigned or terminated under this Section 2.11 and Section
2.12(b)
during the term of this Agreement would exceed 25% of the
aggregate amount
of the Commitments as of the Effective Date. Upon such payments
and
prepayments, the obligations of such Lender hereunder, by the
provisions
hereof, shall be released and discharged; provided, however,
that such
Lender's rights under Sections 2.11, 2.14 and 8.04(b), and its
obligations
under Section 7.05, shall survive such release and discharge as
to matters
occurring prior to the date of termination of such Lender's
Commitment.
SECTION 2.12. Illegality. (a) Notwithstanding any other
provision of this
Agreement, if any Lender (any such Lender being referred to
herein as an
"Affected Lender") shall notify the Agent that the introduction
of or any change
in or in the interpretation of any law or regulation makes it
unlawful, or any
central bank or other governmental authority asserts that it is
unlawful, for
any Lender or its Eurodollar Lending Office to perform its
obligations hereunder
to make Eurodollar Rate Advances or LIBO Rate Advances or to
fund or maintain
Eurodollar Rate Advances or LIBO Rate Advances hereunder, the
obligation of the
Lenders to make, or to Convert Revolving Credit Advances into,
Eurodollar Rate
Advances shall be suspended until the Agent shall notify the
Borrower and the
Lenders that the circumstances causing such suspension no longer
exist. The
Borrower's right to require an assignment in accordance with
clause (b)(ii)
below shall not be effective to the extent that Lenders
representing a majority
of the Commitments then outstanding shall be "Affected
Lenders".
(b) The Borrower shall, within five days of receiving a notice
from any
Affected Lender pursuant to clause (a) of this Section 2.12,
elect (and shall
notify such Affected Lender and the Agent of such election)
to:
<PAGE>
22
(i) prepay in full all Eurodollar Rate Advances or LIBO Rate
Advances
then outstanding, together with interest thereon, unless in the
case of
Eurodollar Rate Advances the Borrower, within five Business Days
of written
notice from the Agent, converts all Eurodollar Rate Advances of
all Lenders
then outstanding into Base Rate Advances in accordance with
Section 2.09;
or
(ii) require that such Affected Lender assign to the
Borrower's
designated assignee or assignees, in accordance with the terms
of Section
8.07, all Advances then owing to such Affected Lender and all
rights and
obligations of such Affected Lender hereunder; provided that (A)
each such
assignment shall be either an assignment of all of the rights
and
obligations of the assigning Affected Lender under this
Agreement or an
assignment of a portion of such rights and obligations made
concurrently
with another such assignment or assignments which together cover
all of the
rights and obligations of the assigning Affected Lender under
this
Agreement, (B) no Affected Lender shall be obligated to make any
such
assignment as a result of a demand by the Borrower pursuant to
this Section
2.12(b) unless and until such Affected Lender shall have
received one or
more payments from either the Borrower or one or more assignees
in an
aggregate amount at least equal to the aggregate outstanding
principal
amount of all Advances owing to such Affected Lender, together
with accrued
interest thereon to the date of payment of such principal
amount, all
facility fees and other fees payable to such Affected Lender and
all other
amounts payable to such Affected Lender under this Agreement
(including,
but not limited to,
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