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EXHIBIT 99.1
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REVOLVING CREDIT AGREEMENT
Dated as of March 31, 2005
among
HARRIS CORPORATION,
as the Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
and
SUNTRUST BANK,
as Administrative Agent, L/C Issuer and Swingline Lender,
and
CITICORP USA, INC. and WACHOVIA BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents
and
FLEET NATIONAL BANK and HSBC BANK USA, NATIONAL ASSOCIATION,
as Co-Documentation Agents
and
SUNTRUST ROBINSON HUMPHREY, A DIVISION OF SUNTRUST CAPITAL
MARKETS, INC.,
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
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PAGE
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ARTICLE I. DEFINITIONS AND ACCOUNTING
TERMS..................................................... 1
1.01 Defined
Terms..............................................................................
1
1.02 Other Interpretive
Provisions..............................................................
18
1.03 Accounting
Terms...........................................................................
18
1.04
Rounding...................................................................................
19
1.05 References to Agreements and
Laws..........................................................
19
ARTICLE II. THE COMMITMENTS AND CREDIT
EXTENSIONS................................................ 19
2.01 Committed
Loans............................................................................
19
2.02 Borrowings, Conversions and Continuations of Committed
Loans............................... 19
2.03 Competitive Bid
Loans......................................................................
21
2.04 Negotiated Bid
Loans.......................................................................
24
2.05 Letters of
Credit..........................................................................
25
2.06
Prepayments................................................................................
32
2.07 Optional Reduction or Termination of
Commitments........................................... 32
2.08 Repayment of
Loans.........................................................................
33
2.09
Interest...................................................................................
33
2.10
Fees.......................................................................................
34
2.11 Computation of Interest and
Fees...........................................................
34
2.12 Evidence of
Debt...........................................................................
35
2.13 Payments
Generally.........................................................................
35
2.14 Sharing of
Payments........................................................................
37
2.15 Swingline
Commitment.......................................................................
38
2.16 Procedure for Swingline Borrowing;
Etc..................................................... 38
2.17 Increase in Commitments; Additional
Lenders................................................ 39
ARTICLE III. TAXES, YIELD PROTECTION AND
ILLEGALITY............................................... 41
3.01
Taxes......................................................................................
41
3.02
Illegality.................................................................................
43
3.03 Inability to Determine
Rates...............................................................
43
3.04 Increased Cost and Reduced Return; Capital Adequacy
Reserves on Eurodollar Rate Loans...... 43
3.05 Funding
Losses.............................................................................
44
3.06 Matters Applicable to all Requests for
Compensation........................................ 45
3.07 Applicability to Negotiated Bid
Loans...................................................... 45
3.08
Survival...................................................................................
45
3.09 Change in Lending Office; Limitation on Increased
Costs.................................... 46
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT
EXTENSIONS............................................ 46
4.01 Conditions of Initial Credit
Extension.....................................................
46
4.02 Conditions to all Credit
Extensions........................................................
48
ARTICLE V. REPRESENTATIONS AND
WARRANTIES.......................................................
48
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5.01 Existence,
Qualification...................................................................
48
5.02 Authorization; No
Contravention............................................................
48
5.03 Governmental
Authorization.................................................................
49
5.04 Binding
Effect.............................................................................
49
5.05 Financial Statements; No Material Adverse
Change........................................... 49
5.06
Litigation.................................................................................
49
5.07 ERISA
Compliance...........................................................................
49
5.08 Real
Property..............................................................................
50
5.09 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act............. 50
5.10 Outstanding
Loans..........................................................................
51
5.11
Taxes......................................................................................
51
5.12 Intellectual Property; License,
Etc........................................................ 51
5.13
Disclosure.................................................................................
51
5.14
Solvency...................................................................................
51
5.15 Patriot
Act................................................................................
51
5.16
OFAC.......................................................................................
52
ARTICLE VI. AFFIRMATIVE
COVENANTS................................................................
52
6.01 Reporting
Requirements.....................................................................
52
6.02 Corporate
Existence........................................................................
54
6.03 Compliance with Laws,
Etc..................................................................
54
6.04
Certificates...............................................................................
54
6.05 Covenant to Secure Notes
Equally...........................................................
54
6.06 Maintenance of
Properties..................................................................
55
6.07 Maintenance of
Insurance...................................................................
55
6.08 Taxes and Other
Claims.....................................................................
55
6.09 Environmental
Laws.........................................................................
55
6.10 Books and
Records..........................................................................
56
6.11 Compliance with
ERISA......................................................................
56
6.12 Visitation, Inspection,
Etc................................................................
56
ARTICLE VII. NEGATIVE
COVENANTS...................................................................
56
7.01
Liens......................................................................................
56
7.02 Merger, Consolidation and Sale of
Assets................................................... 59
7.03 Sale and
Leaseback.........................................................................
60
7.04 Certain
Investments........................................................................
60
7.05 Use of
Proceeds............................................................................
60
7.06 Financial
Covenants........................................................................
60
7.07 Restrictive
Agreements.....................................................................
60
7.08 Hedging
Transactions.......................................................................
61
ARTICLE VIII. EVENTS OF DEFAULT AND
REMEDIES.......................................................
61
8.01 Events of
Default..........................................................................
61
ARTICLE IX. ADMINISTRATIVE
AGENT.................................................................
64
9.01 Appointment and Authorization of Administrative
Agent...................................... 64
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9.02 Delegation of
Duties.......................................................................
65
9.03 Liability of Administrative
Agent..........................................................
65
9.04 Reliance by Administrative
Agent...........................................................
65
9.05 Notice of
Default..........................................................................
66
9.06 Credit Decision; Disclosure of Information by
Administrative Agent......................... 66
9.07 Indemnification of Administrative
Agent.................................................... 67
9.08 Administrative Agent in its Individual
Capacity............................................ 67
9.09 Successor Administrative
Agent.............................................................
67
9.10 Other Agents; Lead
Managers................................................................
68
ARTICLE X.
MISCELLANEOUS........................................................................
68
10.01 Amendments,
Etc............................................................................
68
10.02 Notices and Other Communications; Facsimile Copies;
General................................ 69
10.03 No Waiver; Cumulative
Remedies.............................................................
70
10.04 Attorney Costs, Expenses and
Taxes.........................................................
71
10.05 Indemnification by the
Borrower............................................................
71
10.06 Payments Set
Aside.........................................................................
72
10.07 Successors and
Assigns.....................................................................
72
10.08
Confidentiality............................................................................
75
10.09
Set-off....................................................................................
76
10.10 Interest Rate
Limitation...................................................................
77
10.11
Counterparts...............................................................................
77
10.12
Integration................................................................................
77
10.13 Survival of Representations and
Warranties................................................. 77
10.14
Severability...............................................................................
77
10.15 Removal and Replacement of
Lenders.........................................................
78
10.16 Governing
Law..............................................................................
78
10.17 Waiver of Right to Trial by
Jury...........................................................
79
10.18 Waiver of Right to Consequential
Damages................................................... 79
10.19 ENTIRE
AGREEMENT...........................................................................
79
10.20 Patriot Act
Notice.........................................................................
80
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SCHEDULES
2.01 Commitments and Pro Rata Shares
2.05 Existing Letters of Credit
5.06 Litigation
5.12 Intellectual Property
10.02 Eurodollar and Domestic Lending Offices, Addresses for
Notices
EXHIBITS
FORM OF
A Committed Loan Notice
B-1 Competitive Bid Request
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B-2 Competitive Bid Offer
C-1 Committed Loan Note
C-2 Competitive Bid Loan Note
C-3 Negotiated Bid Loan Note
C-4 Swingline Note
D Compliance Certificate
E Assignment and Acceptance
F Closing Date Opinion of Counsel (content summary)
G Swingline Notice
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<PAGE>
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (this "Agreement") is made and
entered
into as of March 31, 2005, by and among HARRIS CORPORATION, a
Delaware
corporation (the "Borrower"), each lender from time to time
party hereto
(collectively, the "Lenders" and individually, a "Lender"), and
SUNTRUST BANK,
in its capacity as administrative agent for the Lenders (the
"Administrative
Agent"), as issuing bank for letters of credit (the "L/C
Issuer") and as
swingline lender (the "Swingline Lender").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders provide
a
$500,000,000 revolving credit facility in favor of the
Borrower;
WHEREAS, subject to the terms and conditions of this Agreement,
the
Lenders, the L/C Issuer and the Swingline Lender to the extent
of their
respective Commitments as defined herein, are willing severally
to establish the
requested revolving credit facility, letter of credit
subfacility and the
swingline subfacility in favor of the Borrower.
NOW THEREFORE, in consideration of the mutual covenants and
agreements
herein contained and for other good and valuable consideration,
the receipt and
sufficiency of which are hereby acknowledged, 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:
"Absolute Rate" means a fixed rate of interest expressed in
multiples of
1/100th of one basis point.
"Absolute Rate Loan" means a Competitive Bid Loan that bears
interest at a
rate determined with reference to an Absolute Rate.
"Acquisition" means the acquisition of (a) a controlling equity
interest
in another Person (including the purchase of an option, warrant
or convertible
or similar type security to acquire such a controlling interest
at the time it
becomes exercisable by the holder thereof), whether by purchase
of such equity
interest or upon exercise of an option or warrant for, or
conversion of
securities into, such equity interest, or (b) assets of another
Person which
constitute all or substantially all of the assets of such Person
or a line or
lines of business conducted by such Person.
"Additional Commitment Amount" has the meaning set forth in
Section
2.17(a).
"Additional Lender" has the meaning set forth in Section
2.17(b).
<PAGE>
"Administrative Agent" means SunTrust Bank 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.
"Affiliate" means, as to any Person, any other Person directly
or
indirectly controlling, controlled by, or under direct or
indirect common
control with, such Person. A Person shall be deemed to be
"controlled by" any
other Person if such other Person possesses, directly or
indirectly, power (a)
to vote 10% or more of the securities having ordinary voting
power for the
election of directors or managing general partners; or (b) to
direct or cause
the direction of the management and policies of such Person
whether by contract
or otherwise.
"Agent-Related Persons" means the Administrative Agent
(including any
successor administrative agent), together with its Affiliates,
and the officers,
directors, employees, agents and attorneys-in-fact of such
Persons and
Affiliates.
"Aggregate Commitments" shall mean, collectively, all
Commitments of all
Lenders at any time outstanding.
"Agreement" has the meaning set forth in the first paragraph
hereof.
"Applicable Rate" means, from time to time, the following
percentages per
annum, based upon the Senior Debt Rating existing at such
time:
<TABLE>
<CAPTION>
Eurodollar Rate and
Pricing Senior Debt Letters of Facility
Level Ratings Credit Fee
-------------- ---------------- ------------------- --------
<S> <C> <C> <C>
I A-/A3 or better .3000% .1000%
II BBB+/Baa1 .4000% .1000%
III BBB/Baa2 .5000% .1250%
IV BBB-/Baa3 .6250% .1250%
V BB+/Ba1 or lower 1.050% .2000%
</TABLE>
"Senior Debt Rating" means the senior debt rating assigned to
the senior,
unsecured long-term debt securities of the Borrower by either
S&P or Moody's
without third-party credit enhancement, whether or not any such
debt securities
are actually outstanding, and any rating assigned to any other
debt security of
the Borrower shall be disregarded. The rating in effect on any
date is that in
effect at the close of business on such date. If the Borrower is
split-rated and
(1) the ratings differential is one category, the higher of the
two ratings will
apply, (2) the ratings differential is two categories, the
rating which falls
between them shall apply or (3) the ratings differential is
three categories or
more, the rating immediately above the lower of the two ratings
shall apply. If
only one of S&P and Moody's shall have in effect a senior
debt rating for the
Borrower, the Applicable Rate shall be determined by reference
to the available
rating. If neither
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Moody's nor S&P has rated the Borrower, then the Applicable
Rate shall be
established by reference to Pricing Level V.
Initially, the Applicable Rate shall be set at Pricing Level
III.
Thereafter, each change in the Applicable Rate resulting from a
publicly
announced change in the Senior Debt Rating shall be effective,
in the case of an
upgrade, during the period commencing on the date of public
announcement thereof
and ending on the date immediately preceding the effective date
of the next such
change and, in the case of a downgrade, during the period
commencing on the date
of the public announcement thereof and ending on the date
immediately preceding
the effective date of the next such change.
"Assignment and Acceptance" means an Assignment and
Acceptance
substantially in the form of Exhibit E.
"Attorney Costs" means and includes all fees and disbursements
of any law
firm or other external counsel and all disbursements of internal
counsel
"Attributable Indebtedness" means, on any date, in respect of
any
Synthetic Lease Obligation, the capitalized amount of any
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.
"Audited Financial Statements" means the audited consolidated
balance
sheet of the Borrower and its Subsidiaries for the fiscal year
ended July 2,
2004, and the related consolidated statements of income and cash
flows for such
fiscal year.
"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 SunTrust Bank
as its prime lending rate. Such rate is a rate set by SunTrust
Bank based upon
various factors, including SunTrust Bank'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.
The SunTrust Bank prime lending rate is a reference rate and
does not
necessarily represent the lowest or best rate actually charged
to any customer.
SunTrust Bank may make commercial loans or other loans at rates
of interest at,
above, or below the SunTrust Bank prime lending rate. Any change
in such rate
announced by SunTrust Bank shall take effect at the opening of
business on the
day specified in the public announcement of such change.
"Base Rate Loan" means a Committed Loan that bears interest
based on the
Base Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the
United States of America.
"Borrower" has the meaning set forth in the introductory
paragraph hereto.
"Borrowing" means a Committed Borrowing, a Competitive Bid
Borrowing, a
Negotiated Bid Borrowing, or a Swingline Borrowing, as the
context may require.
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"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
applicable offshore Dollar interbank market.
"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 shall have corresponding meaning. The
Borrower hereby
grants the Administrative Agent, for the benefit of the L/C
Issuer and the
Lenders, a Lien on all such cash and deposit account balances.
Cash collateral
shall be maintained in blocked, non-interest bearing deposit
accounts at
SunTrust Bank, or other institutions satisfactory to the
Required Lenders.
"Change of Control" means, with respect to any Person, an event
or series
of events by which:
(a) 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
any employee
benefit plan of such person or its subsidiaries, or any person
or entity acting
in its capacity as trustee, agent or other fiduciary or
administrator of any
such plan), becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5
under the Securities Exchange Act of 1934, except that such 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, "option
right"), whether
such right is exercisable immediately or only after the passage
of time),
directly or indirectly, of 25% or more of the equity securities
of such Person
entitled to vote for members of the board of directors or
equivalent governing
body 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
(b) during any period of 12 consecutive months, a majority of
the
members of the board of directors or other equivalent governing
body of such
Person cease to be composed of individuals (i) who were members
of that board or
equivalent governing body on the first day of such period, (ii)
whose election
or nomination to that board or equivalent governing body was
approved by
individuals referred to in clause (i) above constituting at the
time of such
election or nomination at least a majority of that board or
equivalent governing
body or a duly authorized committee of such board or governing
body or (iii)
whose election or nomination to that board or other equivalent
governing body
was approved by individuals referred to in clauses (i) and (ii)
above
constituting at the time of such election or nomination at least
a majority of
that board or equivalent governing body. For purposes of
determining a majority
of the members of the board of directors or other equivalent
governing body,
vacant seats shall not be included.
"Closing Date" means the first date all the conditions precedent
in
Section 4.01 are satisfied or waived in accordance with Section
4.01 (or, in the
case of Section 4.01(b), waived by the Person entitled to
receive the applicable
payment).
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"Code" means the Internal Revenue Code of 1986.
"Commitment" means, as to each Lender, its obligation (a) to
make
Committed Loans to the Borrower pursuant to Section 2.01 and (b)
to purchase
participations in L/C Obligations and Swingline 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, as such amount may be
reduced or 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 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 Note" means a promissory note made by the
Borrower in
favor of a Lender evidencing Committed Loans made by such
Lender, substantially
in the form of Exhibit C-1.
"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 Committed Loans as the same Type, pursuant to Section
2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.
"Commonly Controlled Entity" means an entity, whether or not
incorporated,
which is under common control with the Borrower within the
meaning of Section
4001 of ERISA or is part of a group which includes the Borrower
and which is
treated as a single employer under Section 414 of the Code.
"Competitive Bid" means a written offer by a Lender to make one
or more
Competitive Bid Loans, substantially in the form of Exhibit B-2,
duly completed
and signed by a Lender.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous
Competitive Bid Loans of the same Type from each of the Lenders
whose offer to
make one or more Competitive Bid Loans as part of such borrowing
has been
accepted under the auction bidding procedures described in
Section 2.03.
"Competitive Bid Loan" has the meaning specified in Section
2.03(a).
"Competitive Bid Loan Note" means a promissory note made by the
Borrower
in favor of a Lender evidencing Competitive Bid Loans made by
such Lender,
substantially in the form of Exhibit C-2.
"Competitive Bid Loan Sublimit" means an amount equal to the
principal
amount of the Aggregate Commitments. The Competitive Bid Loan
Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Competitive Bid Request" means a written request for one or
more
Competitive Bid Loans substantially in the form of Exhibit
B-1.
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"Compliance Certificate" means a certificate substantially in
the form of
Exhibit D.
"Consolidated EBITDA" means, for any period, for the Borrower
and its
Subsidiaries determined on a consolidated basis in accordance
with GAAP, an
amount equal to the sum of (a) Consolidated Net Income for such
period plus (b)
to the extent deducted in determining Consolidated Net Income
for such period,
(i) Consolidated Interest Charges, (ii) income tax expense,
(iii) depreciation
and amortization, determined on a consolidated basis in
accordance with GAAP in
each case for such period, (iv) other non-cash losses or
deductions (including
purchased in-process research and development, impairment
charges, expensing of
stock options or stock awards, write-offs or restructuring
charges), and (v)
fees, costs, write-offs and other expenses associated with any
Acquisition.
"Consolidated Interest Charges" means, for any period, for the
Borrower
and its Subsidiaries determined on a consolidated basis in
accordance with GAAP,
total interest expense with respect to Debt including, without
limitation, the
interest component of any payments in respect of capital leases
capitalized or
expensed during such period (whether or not actually paid during
such period).
"Consolidated Net Income" means, for any period, for the
Borrower and its
Subsidiaries determined on a consolidated basis in accordance
with GAAP, the net
income (or loss) of the Borrower and its Subsidiaries for such
period determined
on a consolidated basis in accordance with GAAP, but excluding
therefrom (to the
extent otherwise included therein) (i) any non-cash
extraordinary gains or
losses, (ii) any gains attributable to write-ups of assets and
(iii) any equity
interest of the Borrower or any Subsidiary of the Borrower in
the unremitted
earnings of any Person that is not a Subsidiary.
"Consolidated Net Interest Expense" means, for any period, for
the
Borrower and its Subsidiaries determined on a consolidated basis
in accordance
with GAAP, (i) Consolidated Interest Charges less (ii) interest
income of the
Borrower and its Subsidiaries for such period.
"Consolidated Total Assets" means, at any time, the total
consolidated
assets of the Borrower and its Subsidiaries determined on a
consolidated basis
in accordance with GAAP, as reflected on the Borrower's
consolidated balance
sheet as of the last day of the fiscal quarter ending on or
before the date of
determination, after eliminating all amounts properly
attributable to minority
interests, if any, in the stock and surplus of Subsidiaries.
"Consolidated Total Indebtedness" means, at any time, without
duplication,
the sum of (a) all amounts which would be included as
indebtedness of the
Borrower and its Subsidiaries determined on a consolidated basis
in accordance
with GAAP at such time, plus (b) the amount of Attributable
Indebtedness of the
Borrower and its Subsidiaries at such time.
"Credit Extension" means (a) a Committed Borrowing, a
Competitive Bid
Borrowing, a Negotiated Bid Borrowing or a Swingline Borrowing
and (b) an L/C
Credit Extension.
"Debt" means, as to any Person at any date, without duplication,
(a) all
indebtedness of such Person for borrowed money or for the
deferred purchase
price of property or services in respect of which such Person is
liable,
contingently or otherwise, as obligor, guarantor or otherwise,
or in respect of
which such Person otherwise assures a creditor against loss,
(other
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than current liabilities incurred in the ordinary course of
business and payable
in accordance with customary practices) or which is evidenced by
a note, bond,
debenture or similar instrument, (b) all obligations of such
Person under any
lease of property, real or personal, the obligations of the
lessee in respect of
which are required in accordance with GAAP to be capitalized on
a balance sheet
of the lessee and (c) all Synthetic Lease Obligations.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of
America, and all other liquidation, conservatorship, bankruptcy,
assignment for
the benefit of creditors, moratorium, rearrangement,
receivership, insolvency,
reorganization, or similar debtor relief Laws of the United
States of America or
other applicable jurisdictions from time to time in effect and
affecting the
rights of creditors generally.
"Default" means any event that, with the giving of any notice,
the passage
of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) with respect
to Base
Rate Loans, the Base Rate plus 2% per annum; (b) with respect to
Eurodollar Rate
Loans, the Eurodollar Rate plus the Applicable Rate applicable
to Eurodollar
Rate Loans plus 2% per annum; provided, however, that for any
Eurodollar Rate
Loans, at the end of the applicable Interest Period, interest
shall accrue at
the Base Rate plus 2% per annum, and (c) with respect to
Swingline Loans, the
Base Rate (or if greater such other rate as agreed to by the
Borrower and the
Swingline Lender with respect to such Swingline Loans) plus 2%
per annum, in
each case to the fullest extent permitted by applicable
Laws.
"Divestiture" has the meaning set forth in Section 7.02(b).
"Dollar" and "$" means lawful money of the United States of
America.
"Eligible Assignee" has the meaning specified in Section
10.07(h).
"Environmental Laws" means any and all Federal, state, local or
municipal
laws, rules, orders, regulations, statutes, ordinances, codes,
decrees or
requirements of any Governmental Authority regulating, relating
to or imposing
liability or standards of conduct concerning environmental
protection matters
(including, without limitation, any hazardous materials,
hazardous wastes,
hazardous constituents, hazardous or toxic substances or
petroleum products
(including crude oil or any fraction thereof)) as now or at any
time hereafter
in effect.
"ERISA" means the Employee Retirement Income Security Act of
1974 and any
regulations promulgated thereunder.
"ERISA Event" means (a) a Reportable Event with respect to a
Pension Plan;
(b) a withdrawal by the Borrower or any Commonly Controlled
Entity 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
Commonly Controlled Entity from a Multiemployer Plan or
notification that a
Multiemployer Plan is in reorganization; (d) with respect to a
Pension Plan or
Multiemployer Plan that does not hold assets that equal or
exceed its
liabilities, the filing of a notice of intent to terminate
under
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<PAGE>
Section 4041(a)(2) of ERISA if the Pension Plan's liabilities
exceed its assets
as of the date of the filing of such notice, 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 such Pension Plan or
Multiemployer Plan;
(e) an event or condition which might reasonably be expected to
constitute
grounds under Section 4042(a)(1)-(3) of ERISA for the
termination of, or the
appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan;
or (f) the imposition of any liability under Title IV of ERISA,
other than PBGC
premiums due but not delinquent under Section 4007 of ERISA,
upon the Borrower
or any Commonly Controlled Entity that would cause a Material
Adverse Effect.
"Eurodollar Bid Margin" means the margin above or below the
Eurodollar
Rate to be added to or subtracted from the Eurodollar Rate,
which margin shall
be expressed in multiples of 1/100th of one basis point.
"Eurodollar Margin Competitive Bid Loan" means a Competitive Bid
Loan that
bears interest at a rate based upon the Eurodollar Rate.
"Eurodollar Rate" means, with respect to each Interest Period
for a
Eurodollar Rate Loan, LIBOR for such Interest Period.
"Eurodollar Rate Committed Loan" means a Committed Loan that
bears
interest at a rate based on the Eurodollar Rate.
"Eurodollar Rate Loan" means a Eurodollar Rate Committed Loan or
a
Eurodollar Margin Competitive Bid Loan.
"Event of Default" has the meaning specified in Article
VIII.
"Excluded Taxes" means in the case of the Administrative Agent
or any
Lender (i) taxes imposed on or measured by its net income, 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 the
Administrative Agent
or such Lender, as the case may be, is organized or maintains a
lending office,
(ii) taxes imposed as a result of a present or former connection
between the
jurisdiction of the government or taxing authority imposing such
tax (or any
political subdivision or taxing authority thereof or therein)
and the
Administrative Agent or such Lender (excluding a connection
arising principally
as a result of the Administrative Agent or such Lender having
executed,
delivered or performed its obligations or received a payment
under, or enforced,
any Loan Document), and (iii) in the case of a Foreign Lender,
any withholding
tax that (A) is imposed on amounts payable to such Foreign
Lender at the time
such Foreign Lender becomes a party to this Agreement, (B) is
imposed on amounts
payable to such Foreign Lender at any time that such Foreign
Lender designates a
new lending office, other than taxes that have accrued prior to
the designation
of such lending office that are otherwise not Excluded Taxes,
and (C) is
attributable to such Foreign Lender's failure to comply with
Section 3.01(e).
"Existing Credit Facility" means that certain Revolving Credit
Agreement,
dated as of October 15, 2003, among the Borrower, the lenders
party thereto, and
SunTrust Bank as administrative agent, L/C issuer and swingline
lender and the
other parties thereto.
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<PAGE>
"Existing Letters of Credit" means the letters of credit issued
and
outstanding under the Existing Credit Facility as set forth on
Schedule 2.05.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded
upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average
of the rates on overnight Federal funds transactions with member
banks of the
Federal Reserve System arranged by Federal funds brokers, as
published by the
Federal Reserve Bank of New York on the next succeeding Business
Day or if such
rate is not so published for any Business Day, the Federal Funds
Rate for such
day shall be the average rounded upwards, if necessary, to the
next 1/100th of
1% of the quotations for such day on such transactions received
by the
Administrative Agent from three Federal funds brokers of
recognized standing
selected by the Administrative Agent.
"Fee Letter" means that certain fee letter, dated as of February
15, 2005,
executed by SunTrust Robinson Humphrey, a division of SunTrust
Capital Markets,
Inc. and SunTrust Bank, and accepted by the Borrower.
"Foreign Lender" means each Lender that is a "foreign
corporation,
partnership or trust" within the meaning of the Code.
"GAAP" means generally accepted accounting principles 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,
that are
applicable to the circumstances as of the date of determination,
consistently
applied.
"Government Contract" means any contract with or made at the
request of
any Governmental Authority.
"Governmental Authority" means any nation or government, any
state or
other political subdivision thereof, any agency, authority,
department,
instrumentality, commission, regulatory body, court,
administrative tribunal,
central bank or other entity exercising executive, legislative,
judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to
government.
"Hazardous Materials" means any hazardous materials, hazardous
wastes,
hazardous constituents, hazardous or toxic substances or
petroleum products
(including crude oil or any fraction thereof), defined or
regulated as such in
or under any Environmental Law.
"Hedging Arrangements" 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
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<PAGE>
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.
"Hostile Acquisition" means (a) any transaction which is subject
to
Section 13 (other than an Investment Transaction) or Section 14
of the
Securities Exchange Act of 1934, unless, prior to the time such
transaction
becomes subject to such Section 13 or 14, the board of directors
or other
governing body of the acquiree has adopted a resolution
approving such
transaction and approving any "change of control" with respect
to such Person
whereby the Borrower may acquire control of such Person, and (b)
any purchase or
attempt to purchase, any Person by means of a public debt or
equity tender offer
or other unsolicited takeover (or the equivalent thereof in any
jurisdiction),
or any attempt to engage in a proxy contest (or the equivalent
thereof in any
jurisdiction) for control of the board of directors (or the
functional
equivalent thereof) of any Person, in either case which has not
been approved
and recommended by the board of directors (or the functional
equivalent thereof)
of the Person being acquired or proposed to be acquired or which
is the subject
of such proxy contest. For purposes of this definition, (x) a
"change of
control" means, for any Person, an Acquisition with respect to
such Person and
(y) an "Investment Transaction" means a transaction subject to
Section 13(d),
but not Section 16, of the Securities Exchange Act of 1934,
provided that in
connection with such a transaction Borrower or any applicable
Subsidiary (as the
case may be) has reported and at all times continues to report
to the Securities
and Exchange Commission that such transaction is undertaken for
investment
purposes only and not for any of the purposes specified in
clauses 4(a) through
(j), inclusive, of the special instructions for complying with
Schedule 13D
under the Securities Exchange Act of 1934.
"Indemnified Liabilities" has the meaning set forth in Section
10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Insolvency" means, with respect to any Multiemployer Plan, the
condition
that such plan is insolvent within the meaning of Section 4245
of ERISA.
"Interest Payment Date" means, (a) as to any Loan other than a
Base Rate
Loan or a Negotiated Bid Loan, the last day of each Interest
Period applicable
to such Loan; 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; (b) as to any Base Rate Loan, the last Business
Day of each
March, June, September and December and the Maturity Date; and
(c) as to any
Negotiated Bid Loan, the date(s) agreed upon by the Borrower and
the applicable
Lender with respect thereto.
"Interest Period" means (a) as to each Eurodollar Rate Loan, the
period
commencing on the date such Eurodollar Rate Loan is disbursed or
(in the case of
any Eurodollar Rate Committed Loan) 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 or
Competitive Bid
Request, as the case may be, or, in the case of Eurodollar
Rate
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<PAGE>
Committed Loans, such other period that is twelve months or less
requested by
the Borrower and consented to by all the Lenders; (b) as to each
Absolute Rate
Loan, a period of not less than 14 days and not more than 180
days as selected
by the Borrower in its Competitive Bid Request; and (c) as to
any Swingline
Loan, such period as the Swingline Lender and the Borrower shall
mutually agree,
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, in the case of a Eurodollar Rate Loan, 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 pertaining to a Eurodollar Rate Loan
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 scheduled
Maturity
Date.
"IP Rights" has the meaning set forth in Section 5.12.
"IRS" means the United States Internal Revenue Service.
"Laws" means, collectively, all international, foreign, Federal,
state and
local statutes, treaties, rules, guidelines, regulations,
ordinances, codes,
executive orders 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
participation in any L/C Borrowing in accordance with its Pro
Rata Share.
"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
renewal or
increase of the amount thereof.
"L/C Issuer" means SunTrust Bank in its capacity as issuer of
Letters of
Credit hereunder, or any successor issuer of Letters of Credit
hereunder.
"L/C Obligations" means, as at any date of determination, the
aggregate
undrawn face amount of all outstanding Letters of Credit plus
the aggregate of
all Unreimbursed Amounts, including all L/C Borrowings.
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<PAGE>
"Lender" has the meaning specified in the introductory paragraph
hereto
and, as the context requires, includes the L/C Issuer and the
Swingline Lender.
"Lending Office" means, as to any Lender, the office or offices
of such
Lender described as such on Schedule 10.02, 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 any of
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 hereunder in the
form from time to
time in use by the L/C Issuer.
"Letter of Credit Subfacility Expiration Date" means the day
that is seven
days prior to the Maturity Date (or, if such day is not a
Business Day, the next
preceding Business Day).
"Letter of Credit Sublimit" means an amount equal to
$75,000,000. The
Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate
Commitments.
"LIBOR" means, for any applicable Interest Period with respect
to any
Eurodollar Rate Loan, the British Bankers' Association Interest
Settlement Rate
per annum for deposits in Dollars for a period equal to such
Interest Period
appearing on the Bloomberg Page (or such other page or such
other service
designated by the British Bankers' Association for the display
of such
Association's Interest Settlement Rates for Dollar deposits) as
of 11:00 a.m.
(London, England time) on the day that is two Business Days
prior to the first
day of the Interest Period or if such page or service is
unavailable for any
reason at such time, the rate which appears on the Reuters
Screen ISDA Page as
of such date and such time; provided, that if the Administrative
Agent
determines that the relevant foregoing sources are unavailable
for the relevant
Interest Period, LIBOR shall mean the rate of interest
determined by the
Administrative Agent to be the average (rounded upward, if
necessary, to the
nearest 1/100th of 1%) of the rates per annum at which deposits
in Dollars are
offered to the Administrative Agent (or the applicable
Competitive Bid Loan
Lender, as the case may be) two (2) Business Days preceding the
first day of
such Interest Period by leading banks in the London interbank
market as of 10:00
a.m. (London, England time) for delivery on the first day of
such Interest
Period, for the number of days comprised therein and in an
amount comparable to
the amount of the Eurodollar Rate Loan of the Administrative
Agent.
"Lien" means any mortgage, pledge, security interest,
assignment, deposit
arrangement, encumbrance, lien (statutory or otherwise),
preference, priority or
charge of any kind or nature whatsoever (including, without
limitation, any
agreement to give any of the foregoing, any conditional sale or
other title
retention agreement, the filing of or agreement to give any
financing statement
under the Uniform Commercial Code of any jurisdiction or any
other similar
recording or notice statute, and any lease having substantially
the same effect
as any of the foregoing).
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<PAGE>
"Loan" means an extension of credit by a Lender to the Borrower
under
Article II in the form of a Committed Loan, a Competitive Bid
Loan, a Negotiated
Bid Loan or a Swingline Loan.
"Loan Documents" means this Agreement, each Note, the Fee
Letter, each
Request for Credit Extension and each Compliance Certificate,
and any and all
other instruments, documents and agreements executed by the
Borrower in
connection with any of the foregoing.
"Margin Stock" has the meaning set forth in Regulation U issued
by the
Board.
"Material Adverse Effect" means a material adverse effect on (a)
the
business, assets, operations, property, condition (financial or
otherwise), or
results of operations of the Borrower and its Subsidiaries taken
as a whole, (b)
the ability of the Borrower to perform its obligations under any
Loan Document
or (c) the validity or enforceability of any Loan Document or
the rights or
remedies of the Lenders hereunder or thereunder.
"Material Subsidiary" means, at any time, any Subsidiary of the
Borrower,
the assets of which represent 10% or more of Consolidated Total
Assets (or the
equivalent thereof in another currency), based upon the most
recent financial
statements delivered to the Administrative Agent pursuant to
Sections 6.01(a)
and (b).
"Maturity Date" means (a) March 31, 2010, or (b) such earlier
date upon
which the Commitments are terminated in accordance with the
terms hereof.
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto.
"Multiemployer Plan" means a multiemployer plan of the type
described in
Section 4001(a)(3) of ERISA, to which the Borrower or any
Commonly Controlled
Entity makes or is obligated to make contributions, or during
the preceding
three calendar years, has made or been obligated to make
contributions.
"Negotiated Bid Borrowing" means a borrowing consisting of a
Negotiated
Bid Loan from a Lender whose offer to make such a Negotiated Bid
Loan has been
accepted in accordance with the procedures described in Section
2.04.
"Negotiated Bid Loan" has the meaning set forth in Section
2.04(a).
"Negotiated Bid Loan Note" means a promissory note made by the
Borrower in
favor of a Lender evidencing Negotiated Bid Loans made by such
Lender,
substantially in the form of Exhibit C-3.
"Negotiated Bid Loan Sublimit" means an amount equal to the
principal
amount of the Aggregate Commitments. The Negotiated Bid Loan
Sublimit is part
of, and not in addition to, the Aggregate Commitments.
"Notes" means, collectively, the Committed Loan Notes, the
Competitive Bid
Loan Notes, the Negotiated Bid Loan Notes and the Swingline
Note.
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<PAGE>
"OFAC" means the U.S. Department of the Treasury's Office of
Foreign
Assets Control.
"Obligations" means all advances to, and debts, liabilities,
obligations,
covenants and duties of, the Borrower arising under any Loan
Document, 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 that accrues after the commencement by or
against the
Borrower or any of its Subsidiaries of any proceeding under any
Debtor Relief
Laws naming such Person as the debtor in such proceeding.
"Organization Documents" means, (a) with respect to any
corporation, the
certificate or articles of incorporation and the bylaws; (b)
with respect to any
limited liability company, the articles of formation and
operating agreement;
and (c) with respect to any partnership, joint venture, trust or
other form of
business entity, the partnership, joint venture or other
applicable agreement of
formation and any agreement, instrument, filing or notice with
respect thereto
filed in connection with its formation with the secretary of
state or other
department in the state of its formation, in each case as
amended from time to
time.
"Outstanding Amount" means (i) with respect to Committed
Loans,
Competitive Bid Loans, Negotiated Bid Loans and Swingline Loans
on any date, the
aggregate outstanding principal amount thereof after giving
effect to any
borrowings and prepayments or repayments of Committed Loans,
Competitive Bid
Loans, Negotiated Bid Loans and Swingline Loans, as the case may
be, occurring
on such date; and (ii) with respect to any L/C Obligations on
any date, the
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 of outstanding unpaid drawings under any Letters
of Credit or any
reductions in the maximum amount available for drawing under
Letters of Credit
taking effect on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant
to Subtitle A of Title IV of ERISA.
"Pension Plan" means any "employee pension benefit plan" (as
such term is
defined in Section 3(2) of ERISA), other than a Multiemployer
Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by
the Borrower or
any Commonly Controlled Entity or to which the Borrower or any
Commonly
Controlled Entity contributes or has an obligation to
contribute, or in the case
of a multiple employer plan (as described in Section 4064(a) of
ERISA) has made
contributions at any time during the immediately preceding five
plan years.
"Permitted Liens" means only those Liens permitted by
subsections (a)
through (q) of Section 7.01.
"Person" means any individual, trustee, corporation, general
partnership,
limited partnership, limited liability company, joint stock
company, trust,
unincorporated organization, bank, business association, firm,
joint venture or
other legally recognized entity or Governmental Authority.
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<PAGE>
"Plan" means, at a particular time, an employee benefit plan as
defined in
Section 3(3) of ERISA and in respect of which the Borrower or a
Commonly
Controlled Entity is an "employer" as defined in Section 3(5) of
ERISA, or would
be deemed a "contributing sponsor" under Section 4069 of ERISA
if such plan were
terminated.
"Properties" has the meaning set forth in Section 5.08.
"Pro Rata Share" means, with respect to each Lender, the
percentage
(carried out to the ninth decimal place) of the Aggregate
Commitments set forth
opposite the name of such Lender on Schedule 2.01, as such share
may be adjusted
as contemplated herein.
"Register" has the meaning set forth in Section 10.07(c).
"Reorganization" means, with respect to any Multiemployer Plan,
the
condition that such plan is in reorganization within the meaning
of Section 4241
of ERISA.
"Reportable Event" means any of the events set forth in Section
4043(c) of
ERISA, other than those events as to which the thirty day notice
period is
waived under the regulations promulgated under Section 4043 of
ERISA.
"Request for Credit Extension" means (a) with respect to a
Borrowing,
conversion or continuation of Committed Loans, a Committed Loan
Notice, (b) with
respect to a Swingline Loan, a Swingline Notice, (c) with
respect to a
Competitive Bid Loan, a Competitive Bid Request, and (d) with
respect to an L/C
Credit Extension, a Letter of Credit Application.
"Required Lenders" means, as of any date of determination, at
least two
Lenders whose Voting Percentages aggregate more than 50%.
"Responsible Officer" means the chief executive officer,
president, vice
president, chief financial officer, treasurer or assistant
treasurer of the
Borrower. Any document delivered hereunder that is signed by a
Responsible
Officer of the Borrower shall be conclusively presumed to have
been authorized
by all necessary corporate, partnership and/or other action on
the part of the
Borrower and such Responsible Officer shall be conclusively
presumed to have
acted on behalf of the Borrower.
"S&P" means Standard & Poor's Ratings Services, a
division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"Securitization" means any agreement or arrangement providing
for sales,
transfers or conveyances to a special purpose Subsidiary or
special purpose
entity of accounts receivable, notes, chattel paper, other
rights to payment and
related property, whether or not for recourse and whether or not
treated as a
sale for purposes of FAS 140, but not including the sale or
transfer of a single
note or notes or receivable undertaken on an isolated,
non-programmatic basis.
For purposes hereof, the "applicable amount" of any
Securitization at any time
shall be equal to the greater of (a) the outstanding principal
amount of any
Debt at such time incurred by the Borrower or any Subsidiary
pursuant to any
such Securitization, or (b) the face amount or book value
(whichever is greater)
of any and all receivables, notes, chattel paper, other rights
to
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<PAGE>
payment and related property sold or transferred pursuant to
such Securitization
and outstanding at such time.
"Senior Debt Rating" has the meaning set forth in the definition
of
"Applicable Rate."
"Single Employer Plan" means any plan maintained for employees
of the
Borrower or any Commonly Controlled Entity that is subject to
Title IV of ERISA,
but which is not a Multiemployer Plan.
"Solvent" and "Solvency" means, with respect to any Person on a
particular
date, that on such date (a) the fair saleable value of the
assets of such Person
is greater than the total amount of liabilities, including,
without limitation,
contingent liabilities, of such Person, (b) such Person is able
to meet its
obligations as those obligations mature, and (c) such Person is
not engaged in
business or a transaction for which such Person's assets would
constitute an
unreasonably small capital. The amount of contingent liabilities
at any time
shall be computed as the amount that, in the light of all the
facts and
circumstances existing at such time, represents the amount that
can reasonably
be expected to become an actual or matured liability.
"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, or the management of which
is otherwise
controlled, directly, or indirectly through one or more
intermediaries, or both,
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.
"SunTrust Bank" means SunTrust Bank.
"Swingline Borrowing" means a borrowing consisting of a
Swingline Loan
from the Swingline Lender made pursuant to Section 2.15.
"Swingline Commitment" means the commitment of the Swingline
Lender to
make Swingline Loans in an aggregate principal amount at any
time outstanding
not to exceed $20,000,000. The Swingline Commitment is part of,
and not in
addition to, the Aggregate Commitments.
"Swingline Exposure" means, with respect to each Lender, the
principal
amount of the Swingline Loans in which such Lender is legally
obligated either
to make a Base Rate Loan or to purchase a participation in
accordance with
Section 2.16, which shall equal such Lender's Pro Rata Share of
all outstanding
Swingline Loans.
"Swingline Lender" means SunTrust Bank, or any other Lender that
may agree
to make Swingline Loans hereunder.
"Swingline Loan" means a loan made to the Borrower by the
Swingline Lender
under the Swingline Commitment.
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"Swingline Note" means the promissory note of the Borrower
payable to the
order of the Swingline Lender in the principal amount of the
Swingline
Commitment, substantially the form of Exhibit C-4.
"Swingline Notice" means a notice of Swingline Loan, delivered
pursuant to
Section 2.16, which, if in writing, shall be substantially in
the form of
Exhibit G.
"Swingline Termination Date" means the day that is seven days
prior to the
Maturity Date (or, if such day is not a Business Day, the next
preceding
Business Day).
"Synthetic Lease Obligation" means the monetary obligation of a
Person
under a so-called synthetic, off-balance sheet or tax retention
lease that does
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).
"Threshold Amount" means $50,000,000.
"Total Capital" means, at any date, the sum of (a) Consolidated
Total
Indebtedness as of such date, plus (b) Total Shareholders'
Equity as of the last
day of the most recently ended fiscal quarter for which the
Borrower has or is
required hereunder to have delivered its financial
statements.
"Total Shareholders' Equity" means, as of any date, the
total
shareholders' equity of the Borrower and its Subsidiaries that
would be
reflected on the Borrower's consolidated balance sheet as of
such date prepared
in accordance with GAAP, but without reduction for the minority
interest in
Subsidiaries that are not wholly owned by the Borrower.
"Type" means (a) with respect to a Committed Loan, its character
as a Base
Rate Loan or a Eurodollar Rate Committed Loan, and (b) with
respect to a
Competitive Bid Loan, its character as an Absolute Rate Loan or
a Eurodollar
Margin Competitive Bid Loan.
"Unreimbursed Amount" has the meaning set forth in Section
2.05(c)(i).
"Vendor Finance Investment" means any loan, advance, lease
(whether
structured as a capital lease or an operating lease) or guaranty
entered into by
the Borrower pursuant to, in connection with or for the purpose
of facilitating
the sale or provision of goods and services of the Borrower to
its customers, in
each case arising outside of the Borrower's ordinary course of
business as
existing on the date hereof.
"Voting Percentage" means, as to any Lender, (a) at any time
prior to the
Maturity Date, such Lender's Pro Rata Share and (b) at any time
after the
Maturity Date, the percentage (carried out to the ninth decimal
place) which (i)
the sum of (A) the Outstanding Amount of such Lender's Committed
Loans,
Competitive Bid Loans and Negotiated Bid Loans, plus (B) such
Lender's Pro Rata
Share of the Outstanding Amount of L/C Obligations and Swingline
Exposure, then
comprises of (ii) the Outstanding Amount of all Loans and L/C
Obligations;
provided, however, that if any Lender has failed to fund any
portion of the
Committed Loans, participations in L/C Obligations or Swingline
Exposure
required to be funded by it hereunder, such Lender's Voting
Percentage shall be
deemed to be -0-, and the respective Pro Rata Shares
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and Voting Percentages of the other Lenders shall be recomputed
for purposes of
this definition and the definition of "Required Lenders" without
regard to such
Lender's Commitment or the outstanding amount of its Committed
Loans, Swingline
Loans and L/C Advances, as the case may be.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this
Agreement and
any other Loan Document, unless otherwise specified herein or in
such other Loan
Document:
(a) The meanings of defined terms are equally applicable to the
singular
and plural forms of the defined terms.
(b) (i) The words "herein" and "hereunder" and words of similar
import
when used in any Loan Document shall refer to such Loan Document
as a whole and
not to any particular provision thereof.
(i) Article, Section, Exhibit and Schedule references are to
the
Loan Document in which such references appear.
(ii) The term "including" is by way of example and not
limitation.
(iii) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports,
financial
statements and other writings, however evidenced, whether in
electronic or
physical form.
(c) 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."
(d) Section headings herein and in the other Loan Documents are
included
for convenience of reference only and shall not affect the
interpretation of
this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined
herein
shall be construed in conformity with, and all financial data
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) 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
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reasonably requested hereunder setting forth a reconciliation
between
calculations of such ratio or requirement made before and after
giving effect to
such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by
the
Borrower pursuant to this Agreement shall be calculated by
dividing the
appropriate component by the other component, carrying the
result to one place
more than the number of places by which such ratio is expressed
herein and
rounding the result up or down to the nearest number (with a
rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise
expressly
provided herein, (a) references to agreements (including the
Loan Documents) and
other contractual instruments shall be deemed to include all
subsequent
amendments, restatements, extensions, supplements and other
modifications
thereto, but only to the extent that such amendments,
restatements, extensions,
supplements and other modifications are not prohibited by any
Loan Document; and
(b) references to any Law shall include all statutory and
regulatory provisions
consolidating, amending, replacing, supplementing or
interpreting such Law.
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 period
from the Closing Date to the Maturity Date, 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 aggregate
Outstanding Amount of all Loans and L/C Obligations shall not
exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount
of the
Committed Loans of any Lender, plus such Lender's Pro Rata Share
of the
Outstanding Amount of all L/C Obligations and Swingline Exposure
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 2.06, 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 Committed Loans
as the same Type
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 (x) 11:00 a.m., New York
time, three
Business Days prior to the requested date of any Committed
Borrowing of,
conversion to or continuation of Eurodollar Rate Committed Loans
or of any
conversion of Eurodollar Rate Committed Loans to Base Rate
Loans, and (y) 11:00
a.m., New York time, on the requested date of any Committed
Borrowing of Base
Rate Loans. Each such telephonic notice 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 Committed
Borrowing of, conversion to or continuation of Eurodollar Rate
Committed Loans
shall be in a principal amount of $5,000,000 or a whole multiple
of
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$1,000,000 in excess thereof (or, if less, an aggregate
principal amount equal
to the remaining balance of the available Commitments). Each
Committed Borrowing
of or conversion to Base Rate Loans shall be in a principal
amount of $500,000
or a whole multiple of $100,000 in excess thereof (or, if less,
an aggregate
amount equal to the remaining balance of the available
Commitments). 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 Committed
Loans as the
same Type, (ii) the requested date of the Borrowing, conversion
or continuation,
as the case may be (which shall be a Business Day), (iii) the
principal amount
of Committed Loans to be borrowed, converted or continued, (iv)
the Type of
Committed Loans to be borrowed or to which existing Committed
Loans are to be
converted, (v) if applicable, the duration of the Interest
Period with respect
thereto and (vi) if applicable, the Committed Loan from which
the requested
Committed Loan will be converted or continued. 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 or continued as, or
converted to, Base
Rate Loans. Any such automatic conversion to Base Rate Loans
shall be effective
as of the last day of the Interest Period then in effect with
respect to the
applicable Eurodollar Rate Committed Loans. If the Borrower
requests a Borrowing
of, conversion to, or continuation of Eurodollar Rate Committed
Loans in any
such Committed Loan Notice, but fails to specify an Interest
Period, it will be
deemed to have specified an Interest Period of one month.
(b) Following receipt of a Committed Loan Notice, the
Administrative
Agent shall promptly notify each Lender of its Pro Rata Share 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, 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
2:00 p.m., New York time, 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, by no later than 3:00
p.m., New York
time, make all funds so received available to the Borrower in
like funds as
received by the Administrative Agent either by (i) crediting the
account of the
Borrower on the books of SunTrust Bank with the amount of such
funds or (ii)
wire transfer of such funds, in each case in accordance with
instructions
provided to the Administrative Agent by the Borrower; provided,
however, that
if, on the date of the Committed Borrowing there are L/C
Borrowings outstanding,
then the proceeds of such Borrowing shall be applied, first, to
the payment in
full of any such L/C Borrowings and second, to the Borrower as
provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate
Committed
Loan may be continued or converted only on the last day of the
Interest Period
for such Eurodollar Rate Committed Loan. During the existence of
a Default or
Event of Default, no Committed Loans may be requested as,
converted to or
continued as Eurodollar Rate Committed Loans without the consent
of the Required
Lenders, and the Required Lenders may demand that any or all of
the then
outstanding Eurodollar Rate Committed Loans be converted to Base
Rate Loans at
the end of the respective Interest Periods related to such
Loans.
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(d) The Administrative Agent shall promptly notify the Borrower
and the
Lenders of the interest rate applicable to any Eurodollar Rate
Committed Loan
upon determination of such interest rate. The determination of
the Eurodollar
Rate by the Administrative Agent shall be conclusive in the
absence of manifest
error. The Administrative Agent shall notify the Borrower and
the Lenders of any
change in SunTrust Bank'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 twelve
Interest Periods in
effect with respect to Committed Loans.
2.03 COMPETITIVE BID LOANS.
(a) General. Subject to the terms and conditions set forth
herein, each
Lender agrees that the Borrower may from time to time request
the Lenders to
submit offers to make loans (each such loan, a "Competitive Bid
Loan") to the
Borrower prior to the Maturity Date pursuant to this Section
2.03; provided,
however, that after giving effect to any Competitive Bid
Borrowing, (i) the
aggregate Outstanding Amount of all Loans and L/C Obligations
shall not exceed
the Aggregate Commitments, and (ii) the aggregate Outstanding
Amount of all
Competitive Bid Loans shall not exceed the Competitive Bid Loan
Sublimit. There
shall not be more than ten different Interest Periods in effect
with respect to
Competitive Bid Loans at any time. The Borrower shall have no
obligation to
accept any Competitive Bid.
(b) Requesting Competitive Bids. The Borrower may request the
submission
of Competitive Bids by delivering a Competitive Bid Request to
the
Administrative Agent not later than 12:00 noon, New York time,
(i) one Business
Day prior to the requested date of any Competitive Bid Borrowing
that is to
consist of Absolute Rate Loans, or (ii) four Business Days prior
to the
requested date of any Competitive Bid Borrowing that is to
consist of Eurodollar
Margin Competitive Bid Loans. Each Competitive Bid Request shall
specify (i) the
requested date of the Competitive Bid Borrowing (which shall be
a Business Day),
(ii) the aggregate principal amount of Competitive Bid Loans
requested (which
must be $10,000,000 or a whole multiple of $1,000,000 in excess
thereof), (iii)
the Type of Competitive Bid Loans requested, and (iv) the
duration of the
Interest Period with respect thereto, and shall be signed by a
Responsible
Officer of the Borrower. No Competitive Bid Request shall
contain a request for
(A) more than one Type of Competitive Bid Loan or (B)
Competitive Bid Loans
having more than four different Interest Periods. Unless the
Administrative
Agent otherwise agrees in its sole and absolute discretion, the
Borrower may not
submit a Competitive Bid Request if it has submitted another
Competitive Bid
Request within the prior five Business Days.
(c) Submitting Competitive Bids.
(i) The Administrative Agent shall promptly notify each Lender
of
each Competitive Bid Request received by it from the Borrower
and the
contents of such Competitive Bid Request.
(ii) Each Lender may (but shall have no obligation to) submit
a
Competitive Bid containing an offer to make one or more
Competitive Bid
Loans in response to such
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<PAGE>
Competitive Bid Request. Such Competitive Bid must be delivered
to the
Administrative Agent not later than 10:30 a.m., New York time,
(A) on the
requested date of any Competitive Bid Borrowing that is to
consist of
Absolute Rate Loans (or such other date as the Company and
Administrative
Agent shall have mutually agreed and of which such Lenders have
been
notified), and (B) three Business Days prior to the requested
date of any
Competitive Bid Borrowing that is to consist of Eurodollar
Margin
Competitive Bid Loans (or such other date as the Company and
Administrative Agent shall have mutually agreed and of which
such Lenders
have been notified); provided, however, that any Competitive Bid
submitted
by SunTrust Bank in its capacity as a Lender in response to
any
Competitive Bid Request must be submitted to the Administrative
Agent not
later than 10:15 a.m., New York time, on the date on which
Competitive
Bids are required to be delivered by the other Lenders in
response to such
Competitive Bid Request. Each Competitive Bid shall specify (A)
the
proposed date of the Competitive Bid Borrowing; (B) the
principal amount
of each Competitive Bid Loan for which such Competitive Bid is
being made,
which principal amount (x) may be equal to, greater than or less
than the
Commitment of the bidding Lender, (y) must be $5,000,000 or in a
whole
multiple of $1,000,000 in excess thereof, and (z) may not exceed
the
principal amount of Competitive Bid Loans for which Competitive
Bids were
requested; (C) if the proposed Competitive Bid Borrowing is to
consist of
Absolute Rate Loans, the Absolute Rate offered for each such
Competitive
Bid Loan and the Interest Period applicable thereto; (D) if the
proposed
Competitive Bid Borrowing is to consist of Eurodollar Margin
Competitive
Bid Loans, the Eurodollar Bid Margin with respect to each such
Eurodollar
Margin Competitive Bid Loan and the Interest Period applicable
thereto;
and (E) the identity of the bidding Lender.
(iii) Any Competitive Bid shall be disregarded if it (A) is
received
after the applicable time specified in clause (ii) above, (B) is
not
substantially in the form of a Competitive Bid as specified
herein, (C)
contains qualifying, conditional or similar language, (D)
proposes terms
other than or in addition to those set forth in the applicable
Competitive
Bid Request, or (E) is otherwise not responsive to such
Competitive Bid
Request. Any Lender may correct a Competitive Bid containing a
manifest
error by submitting a corrected Competitive Bid (identified as
such) not
later than the applicable time required for submission of
Competitive
Bids. Any such submission of a corrected Competitive Bid shall
constitute
a revocation of the Competitive Bid that contained the manifest
error. The
Administrative Agent may, but shall not be required to, notify
any Lender
of any manifest error it detects in a Lender's Competitive
Bid.
(iv) Subject only to the provisions of Sections 3.02, 3.03 (in
the
case of a Eurodollar Rate Competitive Bid Loan) and 4.02 and
clause (iii)
above, each Competitive Bid shall be irrevocable.
(d) Notice to Borrower of Competitive Bids. Not later than 11:00
a.m.,
New York time, (i) on the requested date of any Competitive Bid
Borrowing that
is to consist of Absolute Rate Loans, or (ii) three Business
Days prior to the
requested date of any Competitive Bid Borrowing that is to
consist of Eurodollar
Margin Competitive Bid Loans, the Administrative Agent shall
notify the Borrower
of the identity of each Lender that has submitted a
Competitive
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Bid that complies with Section 2.03(c) and of the terms of the
offers contained
in each such Competitive Bid.
(e) Acceptance of Competitive Bids. Not later than 11:30 a.m.,
New York
time, (i) on the requested date of any Competitive Bid Borrowing
that is to
consist of Absolute Rate Loans, and (ii) three Business Days
prior to the
requested date of any Competitive Bid Borrowing that is to
consist of Eurodollar
Margin Competitive Bid Loans, the Borrower shall notify the
Administrative Agent
of its acceptance or rejection of the offers notified to it
pursuant to Section
2.03(d). The Borrower shall be under no obligation to accept any
Competitive Bid
and may in its sole and absolute discretion choose to reject all
Competitive
Bids. In the case of acceptance, such notice shall specify the
aggregate
principal amount of Competitive Bids for each Interest Period
that is accepted.
The Borrower may accept any Competitive Bid in whole or in part;
provided that:
(i) the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the
related
Competitive Bid Request;
(ii) the principal amount of each Competitive Bid Loan must
be
$5,000,000 or in a whole multiple of $1,000,000 in excess
thereof;
(iii) the acceptance of offers may be made only on the basis
of
ascending Absolute Rates or Eurodollar Bid Margins within each
Interest
Period; and
(iv) the Borrower may not accept any offer that is described
in
Section 2.03(c)(iii) or that otherwise fails to comply with
the
requirements hereof.
(f) Procedure for Identical Bids. If two or more Lenders have
submitted
Competitive Bids at the same Absolute Rate or Eurodollar Bid
Margin, as the case
may be, for the same Interest Period, and the result of
accepting all of such
Competitive Bids in whole (together with any other Competitive
Bids at lower
Absolute Rates or Eurodollar Bid Margins, as the case may be,
accepted for such
Interest Period in conformity with the requirements of Section
2.03(e)(iii))
would be to cause the aggregate outstanding principal amount of
the applicable
Competitive Bid Borrowing to exceed the amount specified
therefor in the related
Competitive Bid Request, then, unless otherwise agreed by the
Borrower, the
Administrative Agent and such Lenders, such Competitive Bids
shall be accepted
as nearly as possible in proportion to the amount offered by
each such Lender in
respect of such Interest Period, at such Absolute Rate or
Eurodollar Bid Margin,
without regard to the requirements of Section 2.03(e)(ii).
(g) Notice to Lenders of Acceptance or Rejection of Bids.
The
Administrative Agent shall promptly notify each Lender having
submitted a
Competitive Bid whether or not its offer has been accepted and,
if its offer has
been accepted, of the amount of the Competitive Bid Loan or
Competitive Bid
Loans to be made by it on the date of the applicable Competitive
Bid Borrowing.
Any Competitive Bid or portion thereof that is not accepted by
the Borrower by
the applicable time specified in Section 2.03(e) shall be deemed
rejected.
(h) Notice of Eurodollar Rate. If any Competitive Bid Borrowing
is to
consist of Eurodollar Margin Loans, the Administrative Agent
shall determine the
Eurodollar Rate for the relevant Interest Period, and promptly
after making such
determination, shall notify the Borrower
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and the Lenders that will be participating in such Competitive
Bid Borrowing of
such Eurodollar Rate.
(i) Funding of Competitive Bid Loans. Each Lender that has
received
notice pursuant to Section 2.03(g) that all or a portion of its
Competitive Bid
has been accepted by the Borrower shall make the amount of its
Competitive Bid
Loan(s) available to the Administrative Agent in immediately
available funds at
the Administrative Agent's Office not later than 1:00 p.m., New
York time, on
the date of the requested Competitive Bid Borrowing. Upon
satisfaction of the
applicable conditions set forth in Section 4.02, the
Administrative Agent shall,
by no later than 3:00 p.m., New York time, make all funds so
received available
to the Borrower in like funds as received by the Administrative
Agent.
(j) Notice of Range of Bids. After each Competitive Bid auction
pursuant
to this Section 2.03, the Administrative Agent shall notify each
Lender that
submitted a Competitive Bid in such auction of the ranges of
bids submitted
(without the bidder's name) and accepted for each Competitive
Bid Loan and the
aggregate amount of each Competitive Bid Borrowing.
2.04 NEGOTIATED BID LOANS.
(a) General. Subject to the terms and conditions set forth
herein, each
Lender agrees to entertain requests made by the Borrower from
time to time to
make Loans (each such loan, a "Negotiated Bid Loan") to the
Borrower prior to
the Maturity Date pursuant to this Section 2.04; provided,
however, that (i) the
Lenders shall have no obligation to make any Negotiated Bid
Loans, (ii) the
Borrower shall have no obligation to accept any offer to make
any Negotiated Bid
Loan, and (iii) after giving effect to any Negotiated Bid Loan
Borrowing, (A)
the aggregate Outstanding Amount of all Loans and L/C
Obligations shall not
exceed the Aggregate Commitments, and (B) the aggregate
Outstanding Amount of
all Negotiated Bid Loans shall not exceed the Negotiated Bid
Loan Sublimit.
(b) Terms. Each Negotiated Bid Loan shall be made on terms
agreed to by
the Borrower and the applicable Lender with respect thereto;
provided that (i)
no Negotiated Bid Loan shall have a maturity date occurring
subsequent to the
Maturity Date, (ii) no Negotiated Bid Loan shall be denominated
in any currency
other than Dollars, and (iii) no obligations of the Borrower
arising in
connection with any Negotiated Bid Loan shall at any time be
secured by any Lien
upon any property, assets or revenues of the Borrower, any of
its Subsidiaries
or any other Person, other than any right of set-off an
applicable Lender may
have with respect to deposit accounts maintained by the Borrower
with such
Lender.
(c) Notice to the Administrative Agent. Not later than 3:00
p.m., New
York time, on the date of any requested Negotiated Bid Loan
Borrowing, the
Borrower shall deliver to the Administrative Agent (i) a notice
specifying (A)
the identity of the respective Lender that has agreed to fund
such Negotiated
Bid Loan Borrowing, (B) the anticipated date of such Negotiated
Bid Loan
Borrowing, (C) the anticipated aggregate principal amount of
such Negotiated Bid
Loan Borrowing, and (D) the anticipated maturity date of such
Negotiated Bid
Loan; and (ii) such documents, instruments and other information
with respect to
such Negotiated Bid Loan as the Administrative Agent may from
time to time
reasonably request.
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<PAGE>
(d) Funding of Negotiated Bid Loans. Each Lender that has agreed
to fund
such Negotiated Bid Loan Borrowing shall make the amount of its
Negotiated Bid
Loan available to the Borrower by no later than 3:00 p.m., New
York time, on the
date of such Borrowing.
2.05 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 other
Lenders
set forth in this Section 2.05, (1) from time to time on any
Business Day
during the period from the Closing Date until the Letter of
Credit
Subfacility Expiration Date, to issue Letters of Credit for the
account of
the Borrower, and to amend or renew Letters of Credit previously
issued by
it, in accordance with subsection (b) below, and (2) to honor
drafts under
the Letters of Credit; and (B) the Lenders severally agree to
participate
in Letters of Credit issued for the account of the Borrower;
provided that
the L/C Issuer shall not be obligated to make any L/C Credit
Extension
with respect to any Letter of Credit, and no Lender shall be
obligated to
participate in, any Letter of Credit if as of the date of such
L/C Credit
Extension, (x) the Outstanding Amount of all L/C Obligations and
all Loans
would exceed the Aggregate Commitments, (y) the aggregate
Outstanding
Amount of the Committed Loans of any Lender, plus such Lender's
Pro Rata
Share of the Outstanding Amount of all L/C Obligations and
Swingline
Exposure would exceed such Lender's Commitment, or (z) the
Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit
Sublimit.
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
that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no 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) subject to Section 2.05(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months
after
the date of issuance or last renewal, unless the Required
Lenders
have approved such expiry date;
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<PAGE>
(C) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Subfacility Expiration Date,
unless
all the Lenders have approved such expiry date;
(D) the issuance of such Letter of Credit would violate one
or more policies of the L/C Issuer; or
(E) such Letter of Credit is in a face amount less than
$100,000, in the case of a commercial Letter of Credit, or
$500,000,
in the case of any other type of Letter of Credit, or is to
be
denominated in a currency other than Dollars.
(iii) 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.
(b) Procedures for Issuance and Amendment of Letters of
Credit;
Evergreen 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 11:00
a.m., New
York time, at least two Business Days (or such later date and
time as the
L/C Issuer may agree in a particular instance in its 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.
(ii) Promptly after its receipt of any Letter of Credit
Application, but in any event no later than two Business Days
prior to the
proposed issuance date, 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. Upon receipt by the L/C Issuer of
confirmation from
the Administrative Agent that the requested issuance or
amendment is
permitted in accordance with the terms
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hereof, 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 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
participation in
such Letter of Credit in an amount equal to the product of such
Lender's
Pro Rata Share times the amount of such Letter of Credit. In
addition and
without limiting the foregoing, on the Closing Date, each Lender
shall be
deemed to have purchased a participation in each Existing Letter
of Credit
in an amount equal to the product of such Lender's Pro Rata
Share times
the amount of such Existing Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit
Application, the L/C Issuer may, in it sole and absolute
discretion, agree
to issue a Letter of Credit that has automatic renewal
provisions (each,
an "Evergreen Letter of Credit"); provided that any such
Evergreen Letter
of Credit must permit the L/C Issuer to prevent any such renewal
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 "Nonrenewal Notice Date") in each
such
twelve-month period to be agreed upon at the time such Letter of
Credit is
issued and have a final expiry date that is not later than the
Letter of
Credit Subfacility Expiration Date. 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 renewal. Once an Evergreen 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 renewal of such Letter
of Credit
at any time to a date not later than the Letter of Credit
Subfacility
Expiration Date; provided, however, that the L/C Issuer shall
not permit
any such renewal if (A) the L/C Issuer would have no obligation
at such
time to issue such Letter of Credit in its renewed form under
the terms
hereof, or (B) it has received notice (which may be by telephone
or in
writing) on or before the Business Day immediately preceding
the
Nonrenewal Notice Date (1) from the Administrative Agent that
the Required
Lenders have elected not to permit such renewal 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.
Notwithstanding anything to the contrary contained herein, the
L/C Issuer
shall have no obligation to permit the renewal of any Evergreen
Letter of
Credit at any time.
(iv) Promptly after its delivery of any Letter of Credit or
any
amendment to a Letter of Credit to an advising bank with respect
thereto
or to the beneficiary thereof, the L/C Issuer will also deliver
to the
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 any drawing under any Letter of Credit, the L/C
Issuer
shall notify the Borrower and the Administrative Agent thereof.
Not later
than 1:00 p.m., New York time, 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
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<PAGE>
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
such Lender's Pro Rata Share 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 2.05(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 (including the Lender acting as L/C Issuer)
shall
upon any notice pursuant to Section 2.05(c)(i) make funds
available to the
Administrative Agent for the account of the L/C Issuer at
the
Administrative Agent's Office in an amount equal to its Pro Rata
Share of
the Unreimbursed Amount not later than 3:00 p.m., New York time,
on the
Business Day specified in such notice by the Administrative
Agent,
whereupon, subject to the provisions of Section 2.05(c)(iii),
each Lender
that so makes funds available shall be deemed to have made a
Base Rate
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 2.05(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 2.05.
(iv) Until each Lender funds its Committed Loan or L/C
Advance
pursuant to this Section 2.05(c) to reimburse the L/C Issuer for
any
amount drawn under any Letter of Credit, interest in respect of
such
Lender's Pro Rata Share 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 2.05(c), shall be
absolute and
unconditional and shall not be affected by any circumstance,
including (A)
any set-off, counterclaim, recoupment, defense or other right
which such
Lender may have against the L/C Issuer, the Borrower or any
other Person
for any reason whatsoever, (B) the occurrence or continuance of
a Default
or Event of Default, or (C) any other occurrence, event or
condition
including, without limitation, the existence (or alleged
existence) of any
Material Adverse Effect, whether or not similar to
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any of the foregoing. Any such reimbursement shall not 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
2.05(c)
by the time specified in Section 2.05(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
Federal Funds Rate from time to time in effect. A certificate of
the L/C
Issuer submitted to any Lender (through the Administrative
Agent) with
respect to any amounts owing under this 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
2.05(c), if
the Administrative Agent receives for the account of the L/C
Issuer any
payment related to such Letter of Credit (whether directly from
the
Borrower or otherwise, including proceeds of Cash Collateral
applied
thereto by the Administrative Agent), or any payment of interest
thereon,
the Administrative Agent will distribute to such Lender its Pro
Rata Share
thereof 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 2.05(c)(i) is
required to be
returned, each Lender shall pay to the Administrative Agent for
the
account of the L/C Issuer its Pro Rata Share thereof on demand
of the
Administrative Agent, plus interest thereon from the date of
such demand
to the date such amount is returned by such Lender, at a rate
per annum
equal to the Federal Funds Rate from time to time in effect.
(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 and each drawing under a Letter of Credit that is
refinanced by a
Borrowing of Committed Loans, 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 agreement or instrument
relating
thereto;
(ii) the existence of any claim, counterclaim, set-off, defense
or
other right that the Borrower 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
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<PAGE>
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; or
(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.
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 promptly 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 authority of
the Person executing or delivering any such document. No
Agent-Related Person
nor any of the respective correspondents, participants or
assignees 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 Letter of Credit Application. 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. No Agent-Related Person, nor
any of the
respective correspondents, participants or assignees of the L/C
Issuer, shall be
liable or responsible for any of the matters described in
clauses (i) through
(v) of Section 2.05(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
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<PAGE>
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. Upon the request of the Administrative
Agent, (i)
if the L/C Issuer has honored any full or partial drawing
request under any
Letter of Credit and such drawing has resulted in an L/C
Borrowing that has not
been converted into a Borrowing under the terms hereof, or (ii)
if, as of the
Letter of Credit Subfacility Expiration Date, any Letter of
Credit may for any
reason remain outstanding and partially or wholly undrawn, the
Borrower shall
immediately Cash Collateralize the then Outstanding Amount of
all L/C
Obligations (in an amount equal to such Outstanding Amount).
(h) Applicability of ISP98 and UCP. Unless otherwise expressly
agreed by
the L/C Issuer and the Borrower when a Letter of Credit is
issued, (i) the rules
of 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) 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 (the "ICC")
at the time of issuance (including the ICC decision published by
the Commission
on Banking Technique and Practice on April 6, 1998 regarding the
European single
currency (euro)) 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 Pro
Rata Share a
letter of credit fee equal to the margin listed under the
heading "Letters of
Credit" in the definition of Applicable Rate multiplied by the
actual daily
maximum amount available to be drawn under all outstanding
Letters of Credit.
Such fee shall be due and payable on the last Business Day of
each March, June,
September and December, commencing with the first such date to
occur after the
issuance of such Letter of Credit, and on the Letter of Credit
Subfacility
Expiration Date. If there is any change in the Applicable Rate
during any
quarter, the actual daily amount of each standby 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.
(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 a
fronting fee in an amount (i) with respect to each commercial
Letter of Credit,
a per annum rate equal to 0.125% of the amount of such Letter of
Credit, due and
payable upon the issuance thereof, and (ii) with respect to each
standby Letter
of Credit, a per annum rate equal to 0.125% on the daily maximum
amount
available to be drawn thereunder, due and payable quarterly in
arrears on the
last Business Day of each March, June, September and December,
commencing with
the first such date to occur after the issuance of such Letter
of Credit, and on
the Letter of Credit Subfacility
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<PAGE>
Expiration Date. 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 fees and
charges are due and payable on demand and are nonrefundable.
(k) Conflict with Letter of Credit Application. In the event of
any
conflict between the terms hereof and the terms of any Letter of
Credit
Application, the terms hereof shall control.
2.06 PREPAYMENTS.
(a) The Borrower may, upon notice to the Administrative Agent,
at any
time or from time to time voluntarily prepay Committed Loans and
Swingline Loans
in whole or in part without premium or penalty; provided that
(i) such notice
must be received by the Administrative Agent (A) not later than
11:00 a.m., New
York time, three Business Days prior to any date of prepayment
of Eurodollar
Rate Committed Loans, and (B) not later than 9:00 a.m., New York
time, on the
date of prepayment of Base Rate Loans and Swingline Loans; (ii)
any prepayment
of Eurodollar Rate Committed Loans shall be in a principal
amount of $5,000,000
or a whole multiple of $1,000,000 in excess thereof; (iii) any
prepayment of
Base Rate Loans shall be in a principal amount of $5,000,000 or
a whole multiple
of $1,000,000 in excess thereof; (iv) any prepayment of
Swingline Loans shall be
in an amount that would be permitted in the case of an advance
of a Swingline
Loan pursuant to Section 2.16, or, in the case of (ii), (iii)
and (iv) if a
lesser amount, the remaining principal amount of the applicable
Loans in any
outstanding Borrowing. Each such notice shall specify the date
and amount of
such prepayment and the Type(s) of Committed Loans or Swingline
Loans to be
prepaid. The Administrative Agent will promptly notify each
Lender of its
receipt of each such notice, and of such Lender's Pro Rata Share
of such
prepayment. If such notice is given by the Borrower, the
Borrower shall make
such prepayment and the payment amount specified in such notice
shall be due and
payable on the date specified therein. Any prepayment of a
Eurodollar Rate Loan
shall be accompanied by all accrued interest thereon, together
with any
additional amounts required pursuant to Section 3.05. Each such
prepayment shall
be applied to the Committed Loans or Swingline Loans, as the
case may be, of the
Lenders in accordance with their respective Pro Rata Shares.
(b) No Competitive Bid Loan may be prepaid without the prior
consent of
the applicable Lender of such Competitive Bid Loan.
(c) The Borrower may prepay Negotiated Bid Loans only in
accordance with
the respective terms and conditions agreed to by the Borrower
and the applicable
Lender in respect of any such Negotiated Bid Loan.
(d) If for any reason the Outstanding Amount of all Loans and
L/C
Obligations at any time exceeds the Aggregate Commitments then
in effect, the
Borrower shall immediately prepay Loans and/or Cash
Collatera
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