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364-DAY CREDIT AGREEMENT
DATED AS OF JUNE 26, 2001
THE INTERPUBLIC GROUP OF COMPANIES, INC., a Delaware corporation
(the "COMPANY"), the banks, financial institutions and other
institutional lenders (the "INITIAL LENDERS") listed on the signature
pages hereof, SALOMON SMITH BARNEY INC., as lead arranger and book
manager, and CITIBANK, N.A. ("CITIBANK"), as administrative agent (the
"AGENT") for the Lenders (as hereinafter defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"ADVANCE" means a Revolving Credit Advance or a Competitive Bid
Advance.
"AFFILIATE" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control
with such Person or is a director or officer of such Person. For
purposes of this definition, the term "control" (including the terms
"controlling", "controlled by" and "under common control with") of a
Person means the possession, direct or indirect, of the power to vote
10% or more of the Voting Stock of such Person or to direct or cause
the direction of the management and policies of such Person, whether
through the ownership of Voting Stock, by contract or otherwise.
"AGENT'S ACCOUNT" means (a) in the case of Advances denominated in
Dollars, the account of the Agent maintained by the Agent at Citibank
at its office at 399 Park Avenue, New York, New York 10043, Account No.
36852248, Attention: Bank Loan Syndications, (b) in the case of
Advances denominated in any Committed Currency, the account of the
Sub-Agent designated in writing from time to time by the Agent to the
Company and the Lenders for such purpose and (c) in any such case, such
other account of the Agent as is designated in writing from time to
time by the Agent to the Company and the Lenders for such purpose.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurocurrency Lending Office in the case of a
Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Agent as its Applicable Lending Office with respect to such Competitive
Bid Advance.
"APPLICABLE MARGIN" means (a) for Base Rate Advances, 0% per annum
and (b) for Eurocurrency Rate Advances, as of any date, a percentage
per annum determined by reference to the Public Debt Rating in effect
on such date as set forth below:
-----------------------------------------------------------------------
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances Eurocurrency Rate Advances
-----------------------------------------------------------------------
LEVEL 1
A+/A1 or above 0.00% 0.235%
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LEVEL 2
A/A2 0.00% 0.320%
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LEVEL 3
A-/A3 0.00% 0.350%
-----------------------------------------------------------------------
LEVEL 4
BBB+/Baa1 0.00% 0.425%
-----------------------------------------------------------------------
LEVEL 5
Lower than Level 4 0.00% 0.600%
-----------------------------------------------------------------------
<PAGE>
"APPLICABLE PERCENTAGE" means, as of any date a percentage per annum
determined by reference to the Public Debt Rating in effect on such date
as set forth below:
--------------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Percentage
--------------------------------------------------
LEVEL 1
A+/A1 or above 0.065%
--------------------------------------------------
LEVEL 2
A/A2 0.080%
--------------------------------------------------
LEVEL 3
A-/A3 0.100%
--------------------------------------------------
LEVEL 4
BBB+/Baa1 0.125%
--------------------------------------------------
LEVEL 5
Lower than Level 4 0.150%
--------------------------------------------------
"APPLICABLE UTILIZATION FEE" means, as of any date that the
aggregate Advances exceeds 50% of the aggregate Commitments, a percentage
per annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
--------------------------------------------------
Public Debt Rating Applicable
S&P/Moody's Utilization Fee
--------------------------------------------------
LEVEL 1
A+/A1 or above 0.050%
--------------------------------------------------
LEVEL 2
A/A2 0.050%
--------------------------------------------------
LEVEL 3
A-/A3 0.050%
--------------------------------------------------
LEVEL 4
BBB+/Baa1 0.075%
--------------------------------------------------
LEVEL 5
Lower than Level 4 0.125%
--------------------------------------------------
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"ASSUMING LENDER" has the meaning specified in Section 2.18(c).
"ASSUMPTION AGREEMENT" has the meaning specified in Section 2.18(c).
"BASE RATE" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
highest of:
(a) the rate of interest announced publicly by Citibank in New
York, New York, from time
<PAGE>
to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if there is
no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i) 1/2 of 1%
per annum, PLUS (ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning offering rates
in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving
average (adjusted to the basis of a year of 360 days) being
determined weekly on each Monday (or, if such day is not a Business
Day, on the next succeeding Business Day) for the three-week period
ending on the previous Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such rates
received by Citibank from three New York certificate of deposit
dealers of recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors of
the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement) for
Citibank with respect to liabilities consisting of or including
(among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, PLUS (iii) the average during such
three-week period of the annual assessment rates estimated by
Citibank for determining the then current annual assessment payable
by Citibank to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of Citibank in the
United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"BASE RATE ADVANCE" means a Revolving Credit Advance denominated in
Dollars that bears interest as provided in Section 2.07(a)(i).
"BORROWERS" means, collectively, the Company and the Designated
Subsidiaries from time to time.
"BORROWING" means a Revolving Credit Borrowing or a Competitive Bid
Borrowing.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advances or LIBO
Rate Advances, on which dealings are carried on in the London interbank
market and banks are open for business in London and in the country of
issue of the currency of such Eurocurrency Rate Advance or LIBO Rate
Advance (or, in the case of an Advance denominated in the euro, in
Frankfurt, Germany).
"COMMITMENT" means as to any Lender (a) the Dollar amount set forth
opposite such Lender's name on the signature pages hereof, (b) if such
Lender has become a Lender hereunder pursuant to an Assumption Agreement,
the Dollar amount set forth in such Assumption Agreement or (c) if such
Lender has entered into any Assignment and Acceptance, the Dollar amount
set forth for such Lender in the Register maintained by the Agent pursuant
to Section 9.07(d), as such amount may be reduced pursuant to Section
2.05.
"COMMITTED CURRENCIES" means lawful currency of the United Kingdom
of Great Britain and Northern Ireland, lawful currency of the Federal
Republic of Germany, lawful currency of the Republic of France, lawful
currency of The Swiss Federation, lawful currency of Japan, Euro and any
other currency requested by the applicable Borrower that can be provided
by all Lenders.
"COMPETITIVE BID ADVANCE" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose offer
to make one or more Competitive Bid Advances as part of
<PAGE>
such borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"COMPETITIVE BID NOTE" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of Exhibit
A-2 hereto, evidencing the indebtedness of such Borrower to such Lender
resulting from a Competitive Bid Advance made by such Lender to such
Borrower.
"COMPETITIVE BID REDUCTION" has the meaning specified in Section
2.01.
"CONFIDENTIAL INFORMATION" means information that any Borrower
furnishes to the Agent or any Lender in a writing other than written
information which is on its face publicly available information, but does
not include any such information that is or becomes generally available to
the public or that is or becomes available to the Agent or such Lender
from a source other than a Borrower.
"CONSENTING LENDER" has the meaning specified in Section 2.18(b).
"CONSOLIDATED" refers to the consolidation of accounts in accordance
with GAAP.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the
Company in its Consolidated financial statements as of such date.
"CONVERT", "CONVERSION" and "CONVERTED" each refers to a conversion
of Revolving Credit Advances of one Type into Revolving Credit Advances of
the other Type pursuant to Section 2.08 or 2.09.
"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all obligations of such
Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property), (e) all obligations of such Person as lessee under leases
that have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit or similar extensions of credit, (g) all obligations of such
Person in respect of Hedge Agreements, (h) all Debt of others referred to
in clauses (a) through (g) above or clause (i) below guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an agreement (1) to pay or
purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for
property or services irrespective of whether such property is received or
such services are rendered) or (4) otherwise to assure a creditor against
loss, and (i) all Debt referred to in clauses (a) through (h) above
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for
the payment of such Debt; PROVIDED, HOWEVER, that the term "Debt" shall
not include obligations under agreements providing for indemnification,
deferred purchase price payments or similar obligations incurred or
assumed in connection with the acquisition or disposition of assets or
stock, whether by merger or otherwise.
"DEBT FOR BORROWED MONEY" of the Company means, without duplication,
Debt for money borrowed or any capitalized lease obligation, any
obligation under a purchase money mortgage, conditional sale or other
title retention agreement or any obligation under notes payable or drafts
accepted representing extensions of credit, but shall not include Debt
evidenced by the Subordinated Convertible Notes or any Debt in respect of
Hedge Agreements.
<PAGE>
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DESIGNATED SUBSIDIARY" means any direct or indirect wholly-owned
Subsidiary of the Company designated for borrowing privileges under this
Agreement pursuant to Section 9.09.
"DESIGNATION AGREEMENT" means, with respect to any Designated
Subsidiary, an agreement in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"DOLLARS" and the "$" sign each means lawful currency of the United
States of America.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender, or such
other office of such Lender as such Lender may from time to time specify
to the Company and the Agent.
"EBITDA" means, for any period, net income (or net loss) PLUS the
sum of (a) Interest Expense, (b) income tax expense, (c) depreciation
expense, (d) amortization expense, in each case determined in accordance
with GAAP for such period, (e) restructuring and other merger related
charges, (f) costs related to the acquisition of Deutsch, Inc. and its
Affiliates, (g) investment impairment charges, in the case of (e), (f) and
(g), as recorded in the financial statements of the Company and its
Consolidated Subsidiaries in accordance with GAAP for the fiscal quarters
ended September 30, 2000, December 31, 2000 and March 31, 2001 and (h)
non-recurring charges up to an aggregate amount of $100,000,000, as
recorded in the financial statements of the Company and its Consolidated
Subsidiaries in accordance with GAAP for the six months ended September
30, 2001.
"EFFECTIVE DATE" has the meaning specified in Section 3.01.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a
Lender; and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any assignment
is effected in accordance with Section 9.07, the Company, such approval
not to be unreasonably withheld or delayed; PROVIDED, HOWEVER, that
neither the Company nor an Affiliate of the Company shall qualify as an
Eligible Assignee.
"EQUIVALENT" in Dollars of any Committed Currency on any date means
the equivalent in Dollars of such Committed Currency determined by using
the quoted spot rate at which the Sub-Agent's principal office in London
offers to exchange Dollars for such Committed Currency in London at
approximately 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the terms
of this Agreement, and the "Equivalent" in any Committed Currency of
Dollars means the equivalent in such Committed Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Committed Currency for
Dollars in London at approximately 4:00 P.M. (London time) (unless
otherwise indicated by the terms of this Agreement) on such date as is
required pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title IV of
ERISA is a member of the Company's controlled group, or under common
control with the Company, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA EVENT" means (a) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by
the PBGC; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the
<PAGE>
provision by the administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of the
Company or any ERISA Affiliate in the circumstances described in Section
4062(e) of ERISA; (e) the withdrawal by the Company or any ERISA Affiliate
from a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the
conditions for the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"EURIBO RATE" means, for any Interest Period, the rate per annum
appearing on Telerate Markets Page 248 (or on any successor or substitute
page, or any successor to or substitute for Telerate Markets, providing
rate quotations comparable to those currently provided on such page of
Telerate Markets, as determined by the Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits
in Euro by reference to the Banking Federation of the European Union
Settlement Rates for deposits in Euro) at approximately 10:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period,
as the rate for deposits in Euro with a maturity comparable to such
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the respective rates per
annum at which deposits in Euros are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal (x) in the case of Revolving Credit Borrowings, to such Reference
Bank's Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period (subject, however, to the provisions of
Section 2.08) or (y) in the case of Competitive Bid Borrowings, to the
amount that would be the Reference Banks' respective ratable shares of
such Borrowing if such Borrowing were to be a Revolving Credit Borrowing
to be outstanding during such Interest Period and for a period equal to
such Interest Period (subject, however, to the provisions of Section
2.08).
"EURO" means the lawful currency of the European Union as
constituted by the Treaty of Rome which established the European
Community, as such treaty may be amended from time to time and as referred
to in the EMU legislation.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EUROCURRENCY LENDING OFFICE" means, with respect to any Lender, the
office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
the Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such other
office of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"EUROCURRENCY RATE" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum obtained
by dividing (a)(i) in the case of any Revolving Credit Borrowing
denominated in Dollars or any Committed Currency other than Euro, the rate
per annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) appearing on Telerate Markets Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars or the
applicable Committed Currency at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period for a
term comparable to such Interest Period or, if for any reason such rate is
not available, the average (rounded upward to the nearest whole multiple
of 1/16 of 1% per annum, if such average is not such a multiple) of the
respective rates per annum at which deposits in Dollars or the applicable
Committed
<PAGE>
Currency are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London interbank market at
11:00 A.M. (London time) two Business Days before the first day of such
Interest Period in an amount substantially equal to such Reference Bank's
Eurocurrency Rate Advance comprising part of such Revolving Credit
Borrowing to be outstanding during such Interest Period and for a period
equal to such Interest Period (subject, however, to the provisions of
Section 2.08) or (ii) in the case of any Revolving Credit Borrowing
denominated in Euro, the EURIBO Rate by (b) a percentage equal to 100%
minus the Eurocurrency Rate Reserve Percentage for such Interest Period.
"EUROCURRENCY RATE ADVANCE" means a Revolving Credit Advance
denominated in Dollars or a Committed Currency that bears interest as
provided in Section 2.07(a)(ii).
"EUROCURRENCY RATE RESERVE PERCENTAGE" for any Interest Period for
all Eurocurrency Rate Advances or LIBO Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurocurrency Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXTENSION DATE" has the meaning specified in Section 2.18(b).
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected
by it.
"FIXED RATE ADVANCES" has the meaning specified in Section
2.03(a)(i), which Advances shall be denominated in Dollars or in any
Committed Currency.
"GAAP" has the meaning specified in Section 1.03.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"INFORMATION MEMORANDUM" means the information memorandum dated May
24, 2001 used by the Agent in connection with the syndication of the
Commitments.
"INTEREST EXPENSE" means, for any period, without duplication,
interest expense (including the interest component on obligations under
capitalized leases), whether paid or accrued, on all Debt of the Company
and its Consolidated Subsidiaries for such period, but shall not include
non-cash interest on the Subordinated Convertible Notes.
"INTEREST PERIOD" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing, the period
commencing on the date of such Eurocurrency Rate Advance
<PAGE>
or LIBO Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day of
the period selected by the Borrower requesting such Borrowing pursuant to
the provisions below and, thereafter, with respect to Eurocurrency Rate
Advances, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six
months, or nine or twelve months if available to all Lenders, as such
Borrower may, upon notice received by the Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the first day of
such Interest Period, select; PROVIDED, HOWEVER, that:
(i) such Borrower may not select any Interest Period that ends
after the Termination Date or, if the Revolving Credit Advances have
been converted to a term loan pursuant to Section 2.06 prior to such
selection, that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, PROVIDED, HOWEVER, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"LENDERS" means the Initial Lenders, each Assuming Lender that shall
become a party hereto pursuant to Section 2.18 and each Person that shall
become a party hereto pursuant to Section 9.07.
"LIBO RATE" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by dividing
(a)(i) in the case of any Competitive Bid Borrowing denominated in Dollars
or any Committed Currency other than Euro, the rate per annum (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum) appearing on
Telerate Markets Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars or the applicable Committed Currency
at approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest
Period or, if for any reason such rate is not available, the average
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum, if
such average is not such a multiple) of the respective rates per annum at
which deposits in Dollars or the applicable Committed Currency are offered
by the principal office of each of the Reference Banks in London, England
to prime banks in the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period in an
amount substantially equal to the amount that would be the Reference
Banks' respective ratable shares of such Borrowing if such Borrowing were
to be a Revolving Credit Borrowing to be outstanding during such Interest
Period and for a period equal to such Interest Period (subject, however,
to the provisions of Section 2.08) or (ii) in the case of any Competitive
Bid Borrowing denominated in Euro, the EURIBO Rate by (b) a percentage
equal to 100% minus the Eurocurrency Rate Reserve Percentage for such
Interest Period.
"LIBO RATE ADVANCES" means a Competitive Bid Advance denominated in
Dollars or in any
<PAGE>
Committed Currency and bearing interest based on the LIBO Rate.
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and the assignment of the right to receive income.
"MATERIAL ADVERSE CHANGE" means any material adverse change in the
business, financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any Note or
(c) the ability of the Company to perform its obligations under this
Agreement or any Note.
"MATURITY DATE" means the earlier of (a) the first anniversary of
the Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.05 or 6.01.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate
is making or accruing an obligation to make contributions, or has within
any of the preceding five plan years made or accrued an obligation to make
contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, subject to Title IV of ERISA that (a) is
maintained for employees of the Company or any ERISA Affiliate and at
least one Person other than the Company and the ERISA Affiliates or (b)
was so maintained and in respect of which the Company or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"NON-CONSENTING LENDER" has the meaning specified in Section
2.18(b).
"NOTE" means a Revolving Credit Note or a Competitive Bid Note.
"NOTICE OF REVOLVING CREDIT BORROWING" has the meaning specified in
Section 2.02(a).
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning specified in
Section 2.03(a).
"PAYMENT OFFICE" means, for any Committed Currency, such office of
Citibank as shall be from time to time selected by the Agent and notified
by the Agent to the Company and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"PERSON" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer Plan.
"PUBLIC DEBT RATING" means, as of any date, the lowest rating that
has been most recently announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced long-term senior unsecured debt
issued by the Company. For purposes of the foregoing, (a) if only one of
S&P and Moody's shall have in effect a Public Debt Rating, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee shall
be determined by reference to the available Public Debt Rating announced
by either S&P or Moody's; (b) if neither S&P nor Moody's shall have in
effect a Public Debt
<PAGE>
Rating, the Applicable Margin, the Applicable Percentage and the
Applicable Utilization Fee will be set in accordance with Level 5 under
the definition of "APPLICABLE MARGIN", "APPLICABLE PERCENTAGE" or
"APPLICABLE UTILIZATION FEE", as the case may be; (c) if such ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher of such ratings, except
that, in the event that the lower of such ratings is more than one level
below the higher of such ratings, the Applicable Margin, the Applicable
Percentage and the Applicable Utilization Fee shall be based upon the
level immediately above the lower of such ratings; (d) if any such rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced publicly
by the rating agency making such change; and (e) if S&P or Moody's shall
change the basis on which ratings are established, each reference to the
Public Debt Rating announced by S&P or Moody's, as the case may be, shall
refer to the then equivalent rating by S&P or Moody's, as the case may be.
"REFERENCE BANKS" means Citibank, HSBC Bank USA and The Chase
Manhattan Bank.
"REGISTER" has the meaning specified in Section 9.07(d).
"REQUIRED LENDERS" means at any time Lenders owed at least a
majority in interest of the then aggregate outstanding principal amount
(based on the Equivalent in Dollars at such time) of the Revolving Credit
Advances, or, if no such principal amount is then outstanding, Lenders
having at least a majority in amount of the Commitments or, if no such
principal amount is then outstanding and the Commitments have been
terminated, Lenders having at least a majority in interest of the then
aggregate outstanding principal amount (based on the Equivalent in Dollars
at such time) of the Competitive Bid Advances.
"REVOLVING CREDIT ADVANCE" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base Rate
Advance or a Eurocurrency Rate Advance (each of which shall be a "TYPE" of
Revolving Credit Advance).
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"REVOLVING CREDIT NOTE" means a promissory note of any Borrower
payable to the order of any Lender, delivered pursuant to a request made
under Section 2.16 in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of such Borrower to such Lender
resulting from the Revolving Credit Advances made by such Lender to such
Borrower.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"SINGLE EMPLOYER PLAN" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, subject to Title IV of ERISA that (a) is
maintained for employees of the Company or any ERISA Affiliate and no
Person other than the Company and the ERISA Affiliates or (b) was so
maintained and in respect of which the Company or any ERISA Affiliate
could have liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"SUB-AGENT" means Citibank International plc.
"SUBORDINATED CONVERTIBLE NOTES" means (a) the 1.80% Convertible
Subordinated Notes due 2004 of the Company issued on September 16, 1997
and (b) the 1.87% Convertible Subordinated Notes due 2006 of the Company
issued on June 1, 1999.
"SUBSIDIARY" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such limited liability company, partnership or joint
venture or (c) the beneficial interest in such trust or
<PAGE>
estate is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one
or more of such Person's other Subsidiaries.
"TERM LOAN CONVERSION DATE" means the Termination Date on which all
Revolving Credit Advances outstanding on such date are converted into a
term loan pursuant to Section 2.06.
"TERM LOAN ELECTION" has the meaning specified in Section 2.06.
"TERMINATION DATE" means the earlier of (a) June 25, 2002, subject
to the extension thereof pursuant to Section 2.18 and (b) the date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01;
PROVIDED, HOWEVER, that the Termination Date of any Lender that is a
Non-Consenting Lender to any requested extension pursuant to Section 2.18
shall be the Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.
"VOTING STOCK" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
SECTION 1.02. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE REVOLVING CREDIT ADVANCES. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Revolving
Credit Advances to any Borrower from time to time on any Business Day during the
period from the Effective Date until the Termination Date in an aggregate amount
(based in respect of any Revolving Credit Advances to be denominated in a
Committed Currency on the Equivalent in Dollars determined on the date of
delivery of the applicable Notice of Revolving Credit Borrowing) for all
Borrowers not to exceed at any time outstanding such Lender's Commitment
PROVIDED that the aggregate amount of the Commitments of the Lenders shall be
deemed used from time to time to the extent of the aggregate amount (based in
respect of any Competitive Bid Advance denominated in a Committed Currency on
the Equivalent in Dollars at such time) of the Competitive Bid Advances then
outstanding and such deemed use of the aggregate amount of the Commitments shall
be allocated among the Lenders ratably according to their respective Commitments
(such deemed use of the aggregate amount of the Commitments being a "COMPETITIVE
BID REDUCTION"). Each Revolving Credit Borrowing shall be in an aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof in the
case of Revolving Credit Advances denominated in Dollars and the Equivalent of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof in the case
of Revolving Credit Advances denominated in any Committed Currency (determined
on the date of the applicable Notice of Revolving Credit Borrowing) and shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Within the limits
of each Lender's Commitment, any Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. MAKING THE REVOLVING CREDIT ADVANCES. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than (x)
10:00 A.M. (New York City time) on the second Business Day prior to the date of
the proposed Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in Dollars, (y)
4:00 P.M. (London time) on the third Business Day prior to the date of the
proposed Revolving Credit Borrowing in the case of a Revolving Credit Borrowing
consisting of Eurocurrency Rate Advances denominated in any Committed Currency,
or (z) 12:00 noon (New York City time) on
<PAGE>
the date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Base Rate Advances, by any Borrower to the Agent
(and, in the case of a Revolving Credit Borrowing consisting of Eurocurrency
Rate Advances, simultaneously to the Sub-Agent), which shall give to each Lender
prompt notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "NOTICE OF REVOLVING CREDIT BORROWING") shall be by
telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Revolving Credit Borrowing, (ii) Type of Advances comprising
such Revolving Credit Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing consisting of
Eurocurrency Rate Advances, initial Interest Period and currency for each such
Revolving Credit Advance; PROVIDED, HOWEVER, that if any such notice shall fail
to specify a currency, Dollars shall be deemed to have been specified. Each
Lender shall, before 2:00 P.M. (New York City time) on the date of such
Revolving Credit Borrowing, in the case of a Revolving Credit Borrowing
consisting of Advances denominated in Dollars, and before 11:00 A.M. (London
time) on the date of such Revolving Credit Borrowing, in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in any
Committed Currency, make available for the account of its Applicable Lending
Office to the Agent at the applicable Agent's Account, in same day funds, such
Lender's ratable portion of such Revolving Credit Borrowing. After the Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Article III, the Agent will make such funds available to the Borrower
requesting the Revolving Credit Borrowing at the Agent's address referred to in
Section 9.02 or, in the case of a Revolving Credit Borrowing in a Committed
Currency, at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) no Borrower may select Eurocurrency Rate Advances for any
Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $5,000,000 (or the Equivalent thereof in a Committed
Currency) or if the obligation of the Lenders to make Eurocurrency Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the
Eurocurrency Rate Advances may not be outstanding as part of more than twenty
separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing of any Borrower shall
be irrevocable and binding on such Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is to
be comprised of Eurocurrency Rate Advances, the Borrower requesting such
Revolving Credit Borrowing shall indemnify each Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Revolving Credit Borrowing for such
Revolving Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Revolving Credit
Advance to be made by such Lender as part of such Revolving Credit Borrowing
when such Revolving Credit Advance, as a result of such failure, is not made on
such date.
(d) Unless the Agent shall have received notice from a Lender prior
to the time of any Revolving Credit Borrowing that such Lender will not make
available to the Agent such Lender's ratable portion of such Revolving Credit
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such Revolving Credit Borrowing in accordance with
subsection (a) of this Section 2.02 and the Agent may, in reliance upon such
assumption, make available to the Borrower proposing the Revolving Credit
Borrowing on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the Agent, such
Lender and such Borrower severally agree to repay to the Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the higher
of (A) the interest rate applicable at the time to Revolving Credit Advances
comprising such Revolving Credit Borrowing and (B) the cost of funds incurred by
the Agent in respect of such amount and (ii) in the case of such Lender, (A) the
Federal Funds Rate in the case of Advances denominated in Dollars or (B) the
cost of funds incurred by the Agent in respect of such amount in the case of
Advances denominated in Committed Currencies. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Revolving Credit Advance as part of such Revolving Credit Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit Advance to be
made by it as part of any
<PAGE>
Revolving Credit Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Revolving Credit Advance on the date of such
Revolving Credit Borrowing, but no Lender shall be responsible for the failure
of any other Lender to make the Revolving Credit Advance to be made by such
other Lender on the date of any Revolving Credit Borrowing.
SECTION 2.03. THE COMPETITIVE BID ADVANCES. (a) Each Lender
severally agrees that any Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period from
the date hereof until the date occurring 30 days prior to the Termination Date
in the manner set forth below; PROVIDED that, following the making of each
Competitive Bid Borrowing, the aggregate amount of the Advances then outstanding
(based in respect of any Advance denominated in a Committed Currency on the
Equivalent in Dollars at the time such Competitive Bid Borrowing is requested)
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any Competitive Bid Reduction).
(i) Any Borrower may request a Competitive Bid Borrowing under this
Section 2.03 by delivering to the Agent (and, in the case of a Competitive
Bid Borrowing not consisting of Fixed Rate Advances or LIBO Rate Advances
to be denominated in Dollars, simultaneously to the Sub-Agent), by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "NOTICE OF
COMPETITIVE BID BORROWING"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (A) date of such proposed
Competitive Bid Borrowing, (B) aggregate amount of such proposed
Competitive Bid Borrowing, (C) interest rate basis and day count
convention to be offered by the Lenders, (D) currency of such proposed
Competitive Bid Borrowing, (E) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances, maturity date
for repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than the
date occurring 30 days after the date of such Competitive Bid Borrowing or
later than the Termination Date), (F) interest payment date or dates
relating thereto, (G) location of such Borrower's account to which funds
are to be advanced and (H) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than (w) 10:00 A.M. (New York City
time) at least one Business Day prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall specify in the Notice of
Competitive Bid Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum (the Advances comprising any such
Competitive Bid Borrowing being referred to herein as "FIXED RATE
ADVANCES") and that the Advances comprising such proposed Competitive Bid
Borrowing shall be denominated in Dollars, (x) 10:00 A.M. (New York City
time) at least four Business Days prior to the date of the proposed
Competitive Bid Borrowing, if such Borrower shall specify in the Notice of
Competitive Bid Borrowing that the Advances comprising such Competitive
Bid Borrowing shall be LIBO Rate Advances denominated in Dollars, (y)
10:00 A.M. (London time) at least two Business Days prior to the date of
the proposed Competitive Bid Borrowing, if such Borrower shall specify in
the Notice of Competitive Bid Borrowing that the Advances comprising such
proposed Competitive Bid Borrowing shall be Fixed Rate Advances
denominated in any Committed Currency and (z) 10:00 A.M. (London time) at
least four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall specify in the Notice of Competitive Bid
Borrowing that the Advances comprising such Competitive Bid Borrowing
shall be LIBO Rate Advances denominated in any Committed Currency. Each
Notice of Competitive Bid Borrowing shall be irrevocable and binding on
such Borrower. Any Notice of Competitive Bid Borrowing by a Designated
Subsidiary shall be given to the Agent (or the Sub-Agent, as the case may
be) from its office in New York, New York on behalf of such Designated
Subsidiary.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to the
Borrower proposing the Competitive Bid Borrowing as part of such proposed
Competitive Bid Borrowing at a rate or rates of interest specified by such
Lender in its sole discretion, by notifying the Agent or the Sub-Agent, as
the case may be (which shall give prompt notice thereof to such Borrower),
(A) before 9:30 A.M. (New York City time) on the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances denominated in Dollars, (B) before 10:00
A.M. (New York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of LIBO Rate Advances, denominated in Dollars, (C)
before 12:00 noon (London time) on the
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Business Day prior to the date of such proposed Competitive Bid Borrowing,
in the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances denominated in any Committed Currency and (D) before 12:00 noon
(London time) on the third Business Day prior to the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances denominated in any Committed Currency, of
the minimum amount and maximum amount of each Competitive Bid Advance
which such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts or the Equivalent thereof in
Dollars, as the case may be, of such proposed Competitive Bid may, subject
to the proviso to the first sentence of this Section 2.03(a), exceed such
Lender's Commitment, if any), the rate or rates of interest therefor and
such Lender's Applicable Lending Office with respect to such Competitive
Bid Advance; PROVIDED that if the Agent in its capacity as a Lender shall,
in its sole discretion, elect to make any such offer, it shall notify such
Borrower of such offer at least 30 minutes before the time and on the date
on which notice of such election is to be given to the Agent or to the
Sub-Agent, as the case may be, by the other Lenders. If any Lender shall
elect not to make such an offer, such Lender shall so notify the Agent
before 10:00 A.M. (New York City time) or the Sub-Agent before 12:00 noon
(London time) on the date on which notice of such election is to be given
to the Agent or to the Sub-Agent, as the case may be, by the other
Lenders, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
PROVIDED that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance as
part of such proposed Competitive Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Borrowing shall, in
turn, (A) before 10:30 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances denominated in Dollars, (B)
before 11:00 A.M. (New York City time) three Business Days before the date
of such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances denominated in Dollars, (C)
before 3:00 P.M. (London time) on the Business Day prior to the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any
Committed Currency and (D) before 3:00 P.M. (London time) on the third
Business Day prior to the date of such Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate Advances
denominated in any Committed Currency, either:
(x) cancel such Competitive Bid Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender or
Lenders pursuant to paragraph (ii) above, in its sole discretion, by
giving notice to the Agent or to the Sub-Agent, as the case may be,
of the amount of each Competitive Bid Advance (which amount shall be
equal to or greater than the minimum amount, and equal to or less
than the maximum amount, notified to such Borrower by the Agent or
the Sub-Agent, as the case may be, on behalf of such Lender for such
Competitive Bid Advance pursuant to paragraph (ii) above) to be made
by each Lender as part of such Competitive Bid Borrowing, and reject
any remaining offers made by Lenders pursuant to paragraph (ii)
above by giving the Agent or the Sub-Agent, as the case may be,
notice to that effect. Such Borrower shall accept the offers made by
any Lender or Lenders to make Competitive Bid Advances in order of
the lowest to the highest rates of interest offered by such Lenders.
If two or more Lenders have offered the same interest rate, the
amount to be borrowed at such interest rate will be allocated among
such Lenders in proportion to the amount that each such Lender
offered at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent or the Sub-Agent, as the case may be, that such
Competitive Bid Borrowing is cancelled pursuant to paragraph (iii)(x)
above, the Agent or the Sub-Agent, as the case may be, shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall not
be made.
<PAGE>
(v) If the Borrower proposing the Competitive Bid Borrowing accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, the Agent or the Sub-Agent, as the case may be,
shall in turn promptly notify (A) each Lender that has made an offer as
described in paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii) above have been accepted by such
Borrower, (B) each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, of the amount of each Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid Advance
as part of such Competitive Bid Borrowing, upon receipt, that the Agent or
the Sub-Agent, as the case may be, has received forms of documents
appearing to fulfill the applicable conditions set forth in Article III.
Each Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 11:00 A.M. (New York City time),
in the case of Competitive Bid Advances to be denominated in Dollars or
11:00 A.M. (London time), in the case of Competitive Bid Advances to be
denominated in any Committed Currency, on the date of such Competitive Bid
Borrowing specified in the notice received from the Agent or the
Sub-Agent, as the case may be, pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Agent or the Sub-Agent, as the case may be pursuant to clause (C)
of the preceding sentence, make available for the account of its
Applicable Lending Office to the Agent (x) in the case of a Competitive
Bid Borrowing denominated in Dollars, at its address referred to in
Section 9.02, in same day funds, such Lender's portion of such Competitive
Bid Borrowing in Dollars and (y) in the case of a Competitive Bid
Borrowing in a Committed Currency, at the Payment Office for such
Committed Currency as shall have been notified by the Agent to the Lenders
prior thereto, in same day funds, such Lender's portion of such
Competitive Bid Borrowing in such Committed Currency. Upon fulfillment of
the applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to such
Borrower at the location specified by such Borrower in its Notice of
Competitive Bid Borrowing. Promptly after each Competitive Bid Borrowing
the Agent will notify each Lender of the amount of the Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent or the Sub-Agent, as the case may be, that it accepts
one or more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be irrevocable
and binding on such Borrower. Such Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of
any failure to fulfill on or before the date specified in the related
Notice of Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by such Lender to fund the Competitive Bid Advance
to be made by such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure, is not made on
such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate amount
of $10,000,000 or an integral multiple of $1,000,000 in excess thereof (or the
Equivalent thereof in any Committed Currency, determined as of the time of the
applicable Notice of Competitive Bid Borrowing) and, following the making of
each Competitive Bid Borrowing, the Borrowers shall be in compliance with the
limitation set forth in the proviso to the first sentence of subsection (a)
above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under this Section 2.03,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.03, PROVIDED that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has made
a Competitive Bid Advance, on the maturity date of each Competitive Bid Advance
(such maturity date being that specified by such Borrower for repayment of such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to
<PAGE>
subsection (a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. No Borrower shall have any right to prepay any principal amount of
any Competitive Bid Advance unless, and then only on the terms, specified by
such Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and set
forth in the Competitive Bid Note evidencing such Competitive Bid Advance.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each Competitive
Bid Advance from the date of such Competitive Bid Advance to the date the
principal amount of such Competitive Bid Advance is repaid in full, at the rate
of interest for such Competitive Bid Advance specified by the Lender making such
Competitive Bid Advance in its notice with respect thereto delivered pursuant to
subsection (a)(ii) above, payable on the interest payment date or dates
specified by such Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such Competitive Bid
Advance. Upon the occurrence and during the continuance of an Event of Default
under Section 6.01(a), such Borrower shall pay interest on the amount of unpaid
principal of and interest on each Competitive Bid Advance owing to a Lender,
payable in arrears on the date or dates interest is payable thereon, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Competitive Bid Advance under the terms of the Competitive
Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each Competitive
Bid Advance made to such Borrower as part of a Competitive Bid Borrowing shall
be evidenced by a separate Competitive Bid Note of such Borrower payable to the
order of the Lender making such Competitive Bid Advance.
SECTION 2.04. FEES. (a) FACILITY FEE. The Company agrees to pay to
the Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Commitment from the Effective Date in the case of each Initial
Lender and from the effective date specified in the Assumption Agreement or in
the Assignment and Acceptance pursuant to which it became a Lender in the case
of each other Lender until the Termination Date at a rate per annum equal to the
Applicable Percentage in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December, commencing June 30,
2001, and on the Termination Date.
(b) AGENT'S FEES. The Company shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Company and the
Agent.
SECTION 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS. (a)
OPTIONAL. The Company shall have the right, upon at least three Business Days'
notice to the Agent, to permanently terminate in whole or reduce ratably in part
the unused portions of the respective Commitments of the Lenders, PROVIDED that
each partial reduction shall be in the aggregate amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and PROVIDED FURTHER that the
aggregate amount of the Commitments of the Lenders shall not be reduced to an
amount that is less than the aggregate principal amount of the Competitive Bid
Advances denominated in Dollars then outstanding plus the Equivalent in Dollars
(determined as of the date of the notice of prepayment) of the aggregate
principal amount of the Competitive Bid Advances denominated in Committed
Currencies then outstanding.
(b) MANDATORY. On the Termination Date, if the Company has made the
Term Loan Election in accordance with Section 2.06 prior to such date, and from
time to time thereafter upon each prepayment of the Revolving Credit Advances,
the Commitments of the Lenders shall be automatically and permanently reduced on
a pro rata basis by an amount equal to the amount by which (i) the aggregate
Commitments immediately prior to such reduction EXCEEDS (ii) the aggregate
unpaid principal amount of all Revolving Credit Advances outstanding at such
time.
SECTION 2.06. REPAYMENT OF REVOLVING CREDIT ADVANCES. Each Borrower
shall, subject to the next succeeding sentence, repay to the Agent for the
ratable account of the Lenders on the Termination Date the aggregate principal
amount of the Revolving Credit Advances then outstanding. The Company may, upon
not less than 15 days' notice to the Agent, elect (the "TERM LOAN ELECTION") to
convert all of the Revolving Credit Advances outstanding on the Termination Date
in effect at such time into a term loan which the Borrowers shall repay in full
<PAGE>
ratably to the Lenders on the Maturity Date; PROVIDED that the Term Loan
Election may not be exercised if a Default has occurred and is continuing on the
date of notice of the Term Loan Election or on such Termination Date. All
Revolving Credit Advances converted into a term loan pursuant to this Section
2.06 shall continue to constitute Revolving Credit Advances except that the
Borrowers may not reborrow pursuant to Section 2.01 after all or any portion of
such Revolving Credit Advances have been prepaid pursuant to Section 2.10.
SECTION 2.07. INTEREST ON REVOLVING CREDIT ADVANCES. (a) SCHEDULED
INTEREST. Each Borrower shall pay interest on the unpaid principal amount of
each Revolving Credit Advance made to it and owing to each Lender from the date
of such Revolving Credit Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Revolving Credit
Advance is a Base Rate Advance, a rate per annum equal at all times to the
sum of (x) the Base Rate in effect from time to time PLUS (y) the
Applicable Margin in effect from time to time PLUS (z) the Applicable
Utilization Fee, if any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December
during such periods and on the date such Base Rate Advance shall be
Converted or paid in full.
(ii) EUROCURRENCY RATE ADVANCES. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving Credit
Advance to the sum of (x) the Eurocurrency Rate for such Interest Period
for such Revolving Credit Advance PLUS (y) the Applicable Margin in effect
from time to time PLUS (z) the Applicable Utilization Fee, if any, in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date
such Eurocurrency Rate Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default under Section 6.01(a), the Borrowers shall pay interest
on (i) the unpaid principal amount of each Revolving Credit Advance owing to
each Lender, payable in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Revolving Credit Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above.
SECTION 2.08. INTEREST RATE DETERMINATION. (a) Each Reference Bank
agrees to furnish to the Agent timely information for the purpose of determining
each Eurocurrency Rate and each LIBO Rate. If any one or more of the Reference
Banks shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest rate
on the basis of timely information furnished by the remaining Reference Banks.
The Agent shall give prompt notice to the Company and the Lenders of the
applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the Required
Lenders notify the Agent that (i) they are unable to obtain matching deposits in
the London inter-bank market at or about 11:00 A.M. (London time) on the second
Business Day before the making of a Borrowing in sufficient amounts to fund
their respective Revolving Credit Advances as a part of such Borrowing during
its Interest Period or (ii) the Eurocurrency Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective Eurocurrency Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Company and the
Lenders, whereupon (A) the Borrower of such Eurocurrency Advances will, on the
last day of the then existing Interest Period therefor, (1) if such Eurocurrency
Rate Advances are denominated in Dollars, either (x) prepay such Advances or (y)
Convert such Advances into Base Rate Advances and (2) if such Eurocurrency Rate
Advances are denominated in any Committed Currency, either (x) prepay such
Advances or (y) redenominate such Advances into an Equivalent amount of Dollars
and Convert such Advances into Base Rate Advances and (B) the obligation of the
Lenders to make, or to Convert Revolving Credit Advances into,
<PAGE>
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer
exist.
(c) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify such Borrower and the Lenders and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, (i) if such Eurocurrency Rate Advances are denominated in Dollars,
Convert into Base Rate Advances and (ii) if such Eurocurrency Rate Advances are
denominated in a Committed Currency, be redenominated into an Equivalent amount
of Dollars and be Converted into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
Eurocurrency Rate Advances comprising any Borrowing shall be reduced, by payment
or prepayment or otherwise, to less than $5,000,000 (or the Equivalent thereof
in any Committed Currency), such Advances shall automatically Convert into Base
Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
(A) if such Eurocurrency Rate Advance is denominated in Dollars, be Converted
into a Base Rate Advance and (B) if such Eurocurrency Rate Advance is
denominated in any Committed Currency, be redenominated into an Equivalent
amount of Dollars and be Converted into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurocurrency
Rate Advances shall be suspended.
(f) If Telerate Markets Page 3750 is unavailable and fewer than two
Reference Banks furnish timely information to the Agent for determining the
Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or LIBO Rate
Advances, as the case may be,
(i) the Agent shall forthwith notify the Company and the Lenders
that the interest rate cannot be determined for such Eurocurrency Rate
Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
be prepaid by the applicable Borrower or be automatically Converted into a
Base Rate Advance and (B) if such Eurocurrency Rate Advance is denominated
in any Committed Currency, be prepaid by the applicable Borrower or be
automatically redenominated into an Equivalent amount of Dollars and be
Converted into a Base Rate Advance, and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances or to Convert Base Rate Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify
the Company and the Lenders that the circumstances causing such suspension
no longer exist.
SECTION 2.09. OPTIONAL CONVERSION OF REVOLVING CREDIT ADVANCES. The
Borrower of any Revolving Credit Advance may on any Business Day, upon notice
given to the Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion and subject to the
provisions of Sections 2.08 and 2.12, Convert all Revolving Credit Advances
denominated in Dollars of one Type comprising the same Borrowing into Revolving
Credit Advances denominated in Dollars of the other Type; PROVIDED, HOWEVER,
that any Conversion of Eurocurrency Rate Advances into Base Rate Advances shall
be made only on the last day of an Interest Period for such Eurocurrency Rate
Advances, any Conversion of Base Rate Advances into Eurocurrency Rate Advances
shall be in an amount not less than the minimum amount specified in Section
2.02(b) and no Conversion of any Revolving Credit Advances shall result in more
separate Revolving Credit Borrowings than permitted under Section 2.02(b). Each
such notice of a Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Dollar denominated Revolving
Credit Advances to be Converted, and (iii) if such Conversion is into
Eurocurrency Rate Advances, the duration of the initial Interest Period for each
such Advance. Each notice of Conversion shall be irrevocable and binding on the
Borrower giving such notice.
<PAGE>
SECTION 2.10. PREPAYMENTS OF REVOLVING CREDIT ADVANCES. (a)
OPTIONAL. Each Borrower may, upon notice at least one Business Day prior to the
date of such prepayment, in the case of Eurocurrency Rate Advances, and not
later than 11:00 A.M. (New York City time) on the date of such prepayment, in
the case of Base Rate Advances, to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given such
Borrower shall, prepay the outstanding principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowing in whole or
ratably in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid; PROVIDED, HOWEVER, that (x) each partial
prepayment shall be in an aggregate principal amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof in the case of Revolving
Credit Advances denominated in Dollars and the Equivalent of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof in the case of Revolving
Credit Advances denominated in any Committed Currencies (determined on the date
notice of prepayment is given) and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
(b) MANDATORY PREPAYMENTS. (i) If the Agent notifies the Company on
the second Business Day prior to any interest payment date that the sum of (A)
the aggregate principal amount of all Advances denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (both (A) and (B) determined on
the third Business Day prior to such interest payment date) of the aggregate
principal amount of all Advances denominated in Committed Currencies then
outstanding exceeds 103% of the aggregate Commitments of the Lenders on such
date, the Borrowers shall, within two Business Days after receipt of such
notice, prepay the outstanding principal amount of any Advances owing by the
Borrowers in an aggregate amount sufficient to reduce such sum after such
payment to an amount not to exceed 100% of the aggregate Commitments of the
Lenders. The Agent shall provide such notice to the Company at the request of
any Lender.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be
made together with any interest accrued to the date of such prepayment on
the principal amounts prepaid and, in the case of any prepayment of a
Eurocurrency Rate Advance or a LIBO Rate Advance on a date other than the
last day of an Interest Period or at its maturity, any additional amounts
which the Borrowers shall be obligated to reimburse to the Lenders in
respect thereof pursuant to Section 9.04(c). The Agent shall give prompt
notice of any prepayment required under this Section 2.10(b) to the
Company and the Lenders.
SECTION 2.11. INCREASED COSTS. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority including, without limitation, any agency
of the European Union or similar monetary or multinational authority (whether or
not having the force of law), there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining Eurocurrency Rate
Advances or LIBO Rate Advances (excluding for purposes of this Section 2.11 any
such increased costs resulting from (i) Taxes or Other Taxes (as to which
Section 2.14 shall govern) and (ii) changes in the basis of taxation of overall
net income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Company shall from time to time, upon demand by such Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Company
and the Agent by such Lender, shall constitute prima facie evidence of such
amounts.
(b) If any Lender determines that due to the introduction of or any
change in or in the interpretation of any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), taking into consideration the policies of such Lender
and any corporation controlling such Lender with respect to capital adequacy,
increases or would increase the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such increase is based upon the existence of such Lender's
commitment to lend hereunder and other commitments of this type and the effect
of such increase is to reduce the rate of return on such Lender's capital or on
the capital of the corporation controlling such Lender, then, upon demand by
such Lender (with a copy of such demand to the Agent), the Company shall pay to
the Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such
<PAGE>
Lender's commitment to lend hereunder. A certificate as to such amounts
submitted to the Company and the Agent by such Lender shall constitute prima
facie evidence of such amounts.
SECTION 2.12. ILLEGALITY. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurocurrency Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Advances in Dollars or any
Committed Currency or LIBO Rate Advances in Dollars or any Committed Currency or
to fund or maintain Eurocurrency Rate Advances in Dollars or any Committed
Currency or LIBO Rate Advances in Dollars or any Committed Currency hereunder,
(a) each Eurocurrency Rate Advance or LIBO Rate Advance, as the case may be,
will automatically, upon such demand, (i) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in Dollars, be Converted into a Base Rate
Advance or an Advance that bears interest at the rate set forth in Section
2.07(a)(i), as the case may be, and (ii) if such Eurocurrency Rate Advance or
LIBO Rate Advance is denominated in any Committed Currency, be redenominated
into an Equivalent amount of Dollars and be Converted into a Base Rate Advance
or an Advance that bears interest at the rate set forth in Section 2.07(a)(i),
as the case may be, and (b) the obligation of the Lenders to make Eurocurrency
Rate Advances or LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurocurrency Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.13. PAYMENTS AND COMPUTATIONS. (a) Each Borrower shall
make each payment hereunder, except with respect to principal of, interest on,
and other amounts relating to, Advances denominated in a Committed Currency, not
later than 11:00 A.M. (New York City time) on the day when due in Dollars to the
Agent at the applicable Agent's Account in same day funds and without deduction,
set off or counterclaim. Each Borrower shall make each payment hereunder with
respect to principal of, interest on, and other amounts relating to, Advances
denominated in a Committed Currency, not later than 11:00 A.M. (at the Payment
Office for such Committed Currency) on the day when due in such Committed
Currency to the Agent, by deposit of such funds to the applicable Agent's
Account in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
facility fees ratably (other than amounts payable pursuant to Section 2.03,
2.11, 2.14 or 9.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon any Assuming Lender becoming a Lender hereunder as a result of
an extension of the Termination Date pursuant to Section 2.18, and upon the
Agent's receipt of such Lender's Assumption Agreement and recording of the
information contained therein in the Register, from and after the applicable
Extension Date the Agent shall make all payments hereunder and under any Notes
issued in connection therewith in respect of the interest assumed thereby to the
Assuming Lender. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
all computations of interest based on the Eurocurrency Rate or the Federal Funds
Rate and of facility fees shall be made by the Agent on the basis of a year of
360 days and computations in respect of Competitive Bid Advances shall be made
by the Agent or the Sub-Agent, as the case may be, as specified in the
applicable Notice of Competitive Bid Borrowing (or, in each case of Advances
denominated in Committed Currencies where market practice differs, in accordance
with market practice), in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or facility fees are payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee, as
the case may be; PROVIDED, HOWEVER, that, if such extension would cause payment
of interest on or principal of Eurocurrency Rate Advances or LIBO Rate Advances
to be made in the next following calendar month, such payment shall be made on
the next
<PAGE>
preceding Business Day.
(d) Unless the Agent shall have received notice from any Borrower
prior to the date on which any payment is due to the Lenders hereunder that such
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at (i) the Federal Funds Rate in the case of Advances
denominated in Dollars or (ii) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in Committed
Currencies.
SECTION 2.14. TAXES. (a) Any and all payments by each Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, EXCLUDING, in the case of each Lender and the Agent, taxes
imposed on its overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "TAXES"). If any Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Company shall pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "OTHER
TAXES").
(c) Each Borrower shall indemnify each Lender and the Agent for and
hold it harmless against the full amount of Taxes or Other Taxes (including,
without limitation, taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.14) imposed on or paid by such Lender or the Agent
(as the case may be) and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing such payment. In the
case of any payment hereunder or under the Notes by or on behalf of such
Borrower through an account or branch outside the United States or by or on
behalf of such Borrower by a payor that is not a United States person, if such
Borrower determines that no Taxes are payable in respect thereof, such Borrower
shall furnish, or shall cause such payor to furnish, to the Agent, at such
address, an opinion of counsel acceptable to the Agent stating that such payment
is exempt from Taxes. For purposes of this subsection (d) and subsection (e),
the terms "UNITED STATES" and "UNITED STATES PERSON" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Initial Lender and on the date of the Assumption
Agreement or the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter as requested
in writing by the Company (but only so long as
<PAGE>
such Lender remains lawfully able to do so), shall provide each of the Agent and
the Company with two original Internal Revenue Service forms W-8BEN or W-8ECI,
as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies, whereupon withholding
tax at such lesser rate only shall be considered excluded from Taxes for periods
governed by such form; PROVIDED, HOWEVER, that, if at the date of the Assignment
and Acceptance pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred to
in this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form W-8BEN or W-8ECI, that the Lender
reasonably considers to be confidential, the Lender shall give notice thereof to
the Borrowers and shall not be obligated to include in such form or document
such confidential information.
(f) Each Initial Lender hereby confirms as of the Effective Date,
and each other Lender confirms as of the effective date of the Assignment and
Acceptance pursuant to which it becomes a party hereto, in favor of the Agent
that either (i) such Lender is not resident in the United Kingdom and is
beneficially entitled to the Advances and the interest thereon or (ii) it is a
bank as defined for the purposes of Section 349 of the Income and Corporation
Taxes Act of 1988 of the United Kingdom and is beneficially entitled to the
Advances and the interest thereon, and each Lender agrees to notify the Agent if
there is any change in its position from that set forth in this clause (f).
(g) For any period with respect to which a Lender has failed to
provide the Company with the appropriate form described in Section 2.14(e)
(OTHER THAN if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such Lender shall not be
entitled to indemnification under Section 2.14(a) or (c) with respect to Taxes
imposed by the United States by reason of such failure; PROVIDED, HOWEVER, that
should a Lender become subject to Taxes because of its failure to deliver a form
required hereunder, the Company shall take such steps at such Lender's expense
as the Lender shall reasonably request to assist the Lender to recover such
Taxes.
(h) Any Lender claiming any additional amounts payable pursuant to
this Section 2.14 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurocurrency Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.15. SHARING OF PAYMENTS, ETC. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Revolving Credit Advances owing to
it (other than pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its
ratable share of payments on account of the Revolving Credit Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. Each Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of
such Borrower in the amount of such participation.
<PAGE>
SECTION 2.16. EVIDENCE OF DEBT. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. Each Borrower agrees that
upon notice by any Lender to such Borrower (with a copy of such notice to the
Agent) to the effect that a Revolving Credit Note is required or appropriate in
order for such Lender to evidence (whether for purposes of pledge, enforcement
or otherwise) the Revolving Credit Advances owing to, or to be made by, such
Lender, such Borrower shall promptly execute and deliver to such Lender a
Revolving Credit Note payable to the order of such Lender in a principal amount
up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.07(d)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and, if appropriate, the Interest Period applicable thereto, (ii) the terms of
each Assumption Agreement and each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from each Borrower to each Lender hereunder and (iv)
the amount of any sum received by the Agent from such Borrower hereunder and
each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to
subsection (b) above, and by each Lender in its account or accounts pursuant to
subsection (a) above, shall be PRIMA FACIE evidence of the amount of principal
and interest due and payable or to become due and payable from each Borrower to,
in the case of the Register, each Lender and, in the case of such account or
accounts, such Lender, under this Agreement, absent manifest error; PROVIDED,
HOWEVER, that the failure of the Agent or such Lender to make an entry, or any
finding that an entry is incorrect, in the Register or such account or accounts
shall not limit or otherwise affect the obligations of any Borrower under this
Agreement.
SECTION 2.17. USE OF PROCEEDS. The proceeds of the Advances shall be
available (and each Borrower agrees that it shall use such proceeds) solely for
general corporate purposes of the Company and its Consolidated Subsidiaries,
including commercial paper backstop and acquisition financing.
SECTION 2.18. EXTENSION OF TERMINATION DATE. (a) Provided that the
Company has not previously made a Term Loan Election pursuant to Section 2.06,
at least 35 days but not more than 45 days prior to the Termination Date, the
Company, by written notice to the Agent, may request an extension of the
Termination Date in effect at such time by 364 days from its then scheduled
expiration. The Agent shall promptly notify each Lender of such request, and
each Lender shall in turn, in its sole discretion, not later than 25 days prior
to the Termination Date, notify the Company and the Agent in writing as to
whether such Lender will consent to such extension. If any Lender shall fail to
notify the Agent and the Company in writing of its consent to any such request
for extension of the Termination Date at least 25 days prior to the Termination
Date, such Lender shall be deemed to be a Non-Consenting Lender with respect to
such request. The Agent shall notify the Company on the next succeeding Business
Day of the decision of the Lenders regarding the Company's request for an
extension of the Termination Date.
(b) If all the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.18, the Termination Date in
effect at such time shall, effective as at the Termination Date (the "EXTENSION
DATE"), be extended for 364 days; PROVIDED that on each Extension Date the
applicable conditions set forth in Article III shall be satisfied. If less than
all of the Lenders consent in writing to any such request in accordance with
subsection (a) of this Section 2.18, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to subsection
(d) of this Section 2.18, be extended as to those Lenders that so consented
(each a "CONSENTING LENDER") but shall not be extended as to any other Lender
(each a "NON-CONSENTING LENDER"). To the extent that the Termination Date is not
extended as to any Lender pursuant to this Section 2.18 and the Commitment of
such Lender is not assumed in accordance with subsection (c) of this Section
2.18 on or prior to the applicable Extension Date, the Commitment of such
Non-Consenting Lender shall automatically terminate in whole on such unextended
Termination Date without any further notice or other action by the Company, such
Lender or any other Person; PROVIDED that such Non-Consenting Lender's rights
under Sections 2.11, 2.14 and 9.04, and its obligations under Section 8.05,
shall survive the Termination Date for such Lender as to matters occurring prior
to such date. It is understood and agreed that no Lender shall have any
obligation whatsoever
<PAGE>
to agree to any request made by the Company for any requested extension of the
Termination Date.
(c) If less than all of the Lenders consent to any such request
pursuant to subsection (a) of this Section 2.18, the Agent shall promptly so
notify the Consenting Lenders, and each Consenting Lender may, in its sole
discretion, give written notice to the Agent not later than 10 days prior to the
Termination Date of the amount of the Non-Consenting Lenders' Commitments for
which it is willing to accept an assignment. If the Consenting Lenders notify
the Agent that they are willing to accept assignments of Commitments in an
aggregate amount that exceeds the amount of the Commitments of the
Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between
the Company and the Agent. If after giving effect to the assignments of
Commitments described above there remain any Commitments of Non-Consenting
Lenders, the Company may arrange for one or more Consenting Lenders or other
Eligible Assignees (each, an "ASSUMING LENDER") to assume, effective as of the
Extension Date, any Non-Consenting Lender's Commitment and all of the
obligations of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such Non-Consenting
Lender; PROVIDED, HOWEVER, that the amount of the Commitment of any such
Assuming Lender as a result of such substitution shall in no event be less than
$10,000,000 unless the amount of the Commitment of such Non-Consenting Lender is
less than $10,000,000, in which case such Assuming Lender shall assume all of
such lesser amount; and PROVIDED FURTHER that:
(i) any such Consenting Lender or Assuming Lender shall have paid to
such Non-Consenting Lender (A) the aggregate principal amount of, and any
interest accrued and unpaid to the effective date of the assignment on,
the outstanding Advances, if any, of such Non-Consenting Lender PLUS (B)
any accrued but unpaid facility fees owing to such Non-Consenting Lender
as of the effective date of such assignment;
(ii) all additional costs reimbursements, expense reimbursements and
indemnities payable to such Non-Consenting Lender, and all other accrued
and unpaid amounts owing to such Non-Consenting Lender hereunder, as of
the effective date of such assignment shall have been paid to such
Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the applicable
processing and recordation fee required under Section 9.07(a) for such
assignment shall have been paid;
PROVIDED FURTHER that such Non-Consenting Lender's rights under Sections 2.11,
2.14 and 9.04, and its obligations under Section 8.05, shall survive such
substitution as to matters occurring prior to the date of substitution. At least
three Business Days prior to any Extension Date, (A) each such Assuming Lender,
if any, shall have delivered to the Company and the Agent an agreement in form
and substance reasonably satisfactory to the Agent and the Company (each, an
"ASSUMPTION AGREEMENT"), duly executed by such Assuming Lender, such
Non-Consenting Lender, the Company and the Agent, (B) any such Consenting Lender
shall have delivered confirmation in writing satisfactory to the Company and the
Agent as to the increase in the amount of its Commitment and (C) each
Non-Consenting Lender being replaced pursuant to this Section 2.18 shall have
delivered to the Agent any Note or Notes held by such Non-Consenting Lender.
Upon the payment or prepayment of all amounts referred to in clauses (i), (ii)
and (iii) above, each such Consenting Lender or Assuming Lender, as of the
Extension Date, will be substituted for such Non-Consenting Lender under this
Agreement and shall be a Lender for all purposes of this Agreement, without any
further acknowledgment by or the consent of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If (after giving effect to any assignments or assumptions
pursuant to subsection (c) of this Section 2.18) Lenders having Commitments
equal to at least 50% of the Commitments in effect immediately prior to the
Extension Date consent in writing to a requested extension (whether by execution
or delivery of an Assumption Agreement or otherwise) not later than one Business
Day prior to such Extension Date, the Agent shall so notify the Company, and,
subject to the satisfaction of the applicable conditions in Article III, the
Termination Date then in effect shall be extended for the additional 364-day
period as described in subsection (a) of this Section 2.18, and all references
in this Agreement, and in the Notes, if any, to the "TERMINATION DATE" shall,
with respect to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Termination Date as so extended. Promptly following
each Extension Date, the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) of the extension of the scheduled Termination
Date in effect immediately prior
<PAGE>
thereto and shall thereupon record in the Register the relevant information with
respect to each such Consenting Lender and each such Assuming Lender.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SECTIONS 2.01
AND 2.03. Sections 2.01 and 2.03 of this Agreement shall become effective on and
as of the first date (the "EFFECTIVE DATE") on which the following conditions
precedent to the initial Advance by any Lender have been satisfied:
(a) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Company or any of its Consolidated Subsidiaries
pending or threatened before any court, governmental agency or arbitrator
that (i) could be reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of this
Agreement or any Note or the consummation of the transactions contemplated
hereby.
(b) Nothing shall have come to the attention of the Lenders during
the course of their due diligence investigation to lead them to believe
that the Information Memorandum was or has become misleading, incorrect or
incomplete in any material respect; without limiting the generality of the
foregoing, each Lender shall have been given such access to the
management, records, books of account, contracts and properties of the
Company and its Consolidated Subsidiaries as it shall have reasonably
requested as a basis for making its decision to enter into its commitment
hereunder.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions by the Company contemplated
hereby shall have been obtained (without the imposition of any conditions
that are not acceptable to the Lenders) and shall remain in effect, and no
law or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse conditions
upon the transactions contemplated hereby.
(d) The Company shall have notified the Agent in writing as to the
proposed Effective Date.
(e) The Company shall have paid all accrued fees and expenses of the
Agent and the Lenders (including the invoiced accrued fees and expenses of
counsel to the Agent).
(f) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Company, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(g) The Agent shall have received on or before the Effective Date
the following, each dated the Effective Date, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes) in
sufficient copies for each Lender:
(i) The Revolving Credit Notes of the Company to the order of
the Lenders to the extent requested by any Lender pursuant to
Section 2.16.
<PAGE>
(ii) Certified copies of the resolutions of the Finance
Committee of the Board of Directors of the Company approving this
Agreement and the Notes to be delivered by it, and of all documents
evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the Notes to
be delivered by it.
(iii) A certificate of the Secretary or an Assistant Secretary
of the Company certifying the names and true signatures of the
officers of the Company authorized to sign this Agreement and the
Notes to be delivered by it and the other documents to be delivered
by it hereunder.
(iv) A favorable opinion of Nicholas J. Camera, General
Counsel of the Company, and of Cleary, Gottlieb, Steen & Hamilton,
counsel for the Company, substantially in the form of Exhibits D-2
and D-1 hereto, respectively.
(v) A favorable opinion of Shearman & Sterling, counsel for
the Agent, in form and substance satisfactory to the Agent.
(h) The termination of the commitments of the Lenders and the
payment in full of all Debt outstanding under the 364-Day Credit Agreement
dated as of June 27, 2000 among the Company, the lenders parties thereto
and Citibank, N.A., as administrative agent; each Lender that is a party
to the foregoing Credit Agreement, by execution of this Agreement, hereby
waives the requirement of three Business Days' notice set forth in Section
2.05 of such Credit Agreement for the termination of its commitments
thereunder.
SECTION 3.02. INITIAL ADVANCE TO EACH DESIGNATED SUBSIDIARY. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary is subject to the receipt by the Agent on or before the date of such
initial Advance of each of the following, in form and substance reasonably
satisfactory to the Agent and dated such date, and (except for the Revolving
Credit Notes) in sufficient copies for each Lender:
(a) The Revolving Credit Notes of such Designated Subsidiary to the
order of the Lenders to the extent requested by any Lender pursuant to
Section 2.16.
(b) Certified copies of the resolutions of the Board of Directors of
such Designated Subsidiary (with a certified English translation if the
original thereof is not in English) approving this Agreement and the Notes
to be delivered by it, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to this
Agreement.
(c) A certificate of a proper officer of such Designated Subsidiary
certifying the names and true signatures of the officers of such
Designated Subsidiary authorized to sign its Designation Agreement and the
Notes to be delivered by it and the other documents to be delivered by it
hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, certifying that such Designated Subsidiary has obtained all
governmental and third party authorizations, consents, approvals
(including exchange control approvals) and licenses required under
applicable laws and regulations necessary for such Designated Subsidiary
to execute and deliver its Designation Agreement and the Notes to be
delivered by it and to perform its obligations hereunder and thereunder.
(e) A Designation Agreement duly executed by such Designated
Subsidiary and the Company.
(f) Favorable opinions of counsel (which may be in-house counsel) to
such Designated Subsidiary substantially in the form of Exhibits D-1 and
D-2 hereto, respectively, and as to such other matters as any Lender
through the Agent may request.
(g) Such other approvals, opinions or documents as any Lender,
through the Agent may reasonably request.
<PAGE>
SECTION 3.03. CONDITIONS PRECEDENT TO EACH REVOLVING CREDIT
BORROWING AND EXTENSION DATE. The obligation of each Lender to make a Revolving
Credit Advance on the occasion of each Revolving Credit Borrowing and each
extension of Commitments pursuant to Section 2.18 shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the date
of such Revolving Credit Borrowing or the applicable Extension Date the
following statements shall be true (and each of the giving of the applicable
Notice of Revolving Credit Borrowing or request for Commitment extension and the
acceptance by any Borrower of the proceeds of such Revolving Credit Borrowing
shall constitute a representation and warranty by such Borrower that on the date
of such Borrowing or such Extension Date, as the case may be, such statements
are true):
(a) the representations and warranties contained in Section 4.01
(except, in the case of Revolving Credit Borrowings, the representation
set forth in the last sentence of subsection (e) thereof) and, in the case
of any Revolving Credit Borrowing made to a Designated Subsidiary, in the
Designation Agreement for such Designated Subsidiary, are correct on and
as of such date, before and after giving effect to such Revolving Credit
Borrowing or such Extension Date and to the application of the proceeds
therefrom, as though made on and as of such date, and
(b) no event has occurred and is continuing, or would result from
such Revolving Credit Borrowing or such Extension Date or from the
application of the proceeds therefrom, that constitutes a Default.
SECTION 3.04. CONDITIONS PRECEDENT TO EACH COMPETITIVE BID
BORROWING. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such Competitive
Bid Advance as part of such Competitive Bid Borrowing is subject to the
conditions precedent that (i) the Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect thereto, (ii) on
or before the date of such Competitive Bid Borrowing, but prior to such
Competitive Bid Borrowing, the Agent shall have received a Competitive Bid Note
payable to the order of such Lender for each of the one or more Competitive Bid
Advances to be made by such Lender as part of such Competitive Bid Borrowing, in
a principal amount equal to the principal amount of the Competitive Bid Advance
to be evidenced thereby and otherwise on such terms as were agreed to for such
Competitive Bid Advance in accordance with Section 2.03, and (iii) on the date
of such Competitive Bid Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Competitive Bid Borrowing and the
acceptance by the Borrower requesting such Competitive Bid Borrowi