CREDIT AGREEMENT among
UNILAB CORPORATION,
VARIOUS LENDING INSTITUTIONS,
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT and
MERRILL LYNCH CAPITAL CORPORATION,
AS SYNDICATION AGENT ____________________________________
Dated as of November 23, 1999 ____________________________________ $185,000,000
DEUTSCHE BANK SECURITIES INC. MERRILL LYNCH CAPITAL CORPORATION
LEAD ARRANGER
AND CO-ARRANGER
BOOK MANAGER
[LOGO OF DEUTSCHE BANK] [LOGO OF MERRILL LYNCH]
TABLE OF CONTENTS ----------------- Page ----
SECTION 1. Amount and Terms of Credit............................. 1
1.01 Commitments............................................. 1
1.02 Minimum Borrowing Amounts, etc.......................... 3
1.03 Notice of Borrowing..................................... 3
1.04 Disbursement of Funds................................... 4
1.05 Register................................................ 5
1.06 Conversions............................................. 5
1.07 Pro Rata Borrowings..................................... 5
1.08 Interest................................................ 6
1.09 Interest Periods........................................ 6
1.10 Increased Costs, Illegality, etc........................ 7
1.11 Compensation............................................ 9
1.12 Change of Lending Office................................ 10
1.13 Replacement of Lenders.................................. 10
SECTION 2. Letters of Credit...................................... 11
2.01 Letters of Credit....................................... 11
2.02 Minimum Stated Amount................................... 12
2.03 Letter of Credit Requests; Notices of Issuance.......... 12
2.04 Agreement to Repay Letter of Credit Drawings............ 12
2.05 Letter of Credit Participations......................... 13
2.06 Increased Costs......................................... 15
SECTION 3. Fees; Commitments...................................... 16
3.01 Fees.................................................... 16
3.02 Voluntary Reduction of Commitments...................... 16
3.03 Mandatory Adjustments of Commitments, etc............... 17
SECTION 4. Payments............................................... 17
4.01 Voluntary Prepayments................................... 17
4.02 Mandatory Prepayments................................... 18
4.03 Method and Place of Payment............................. 24
4.04 Net Payments............................................ 24
SECTION 5. Conditions Precedent................................... 26
5.01 Conditions Precedent to Loans on the Initial Borrowing
Date.................................................... 26
5.02 Conditions Precedent to All Credit Events............... 32 (i)
SECTION 6. Representations, Warranties and Agreements............. 32
6.01 Company Status.......................................... 32
6.02 Company Power and Authority............................. 33
6.03 No Violation............................................ 33
6.04 Litigation.............................................. 33
6.05 Use of Proceeds; Margin Regulations..................... 33
6.06 Governmental Approvals.................................. 34
6.07 Investment Company Act.................................. 34
6.08 Public Utility Holding Company Act...................... 34
6.09 True and Complete Disclosure............................ 34
6.10 Financial Condition; Financial Statements............... 35
6.11 Security Interests...................................... 35
6.12 Tax Returns and Payments................................ 36
6.13 Compliance with ERISA................................... 36
6.14 Subsidiaries............................................ 37
6.15 Patents, etc............................................ 37
6.16 Environmental Matters................................... 37
6.17 Properties.............................................. 38
6.18 Labor Relations......................................... 38
6.19 Senior Subordinated Notes............................... 39
6.20 Existing Indebtedness................................... 39
SECTION 7. Affirmative Covenants.................................. 39
7.01 Information Covenants................................... 39
7.02 Books, Records and Inspections.......................... 41
7.03 Insurance............................................... 42
7.04 Payment of Taxes........................................ 42
7.05 Consolidated Corporate Franchises....................... 42
7.06 Compliance with Statutes, etc........................... 42
7.07 ERISA................................................... 42
7.08 Good Repair............................................. 43
7.09 End of Fiscal Years; Fiscal Quarters.................... 43
7.10 Use of Proceeds......................................... 43
7.11 Additional Security; Further Assurances................. 44
7.12 Compliance with Environmental Laws...................... 44
7.13 Interest Rate Agreements................................ 45
7.14 Year 2000 Compliance.................................... 45
SECTION 8. Negative Covenants..................................... 45
8.01 Changes in Business..................................... 45
8.02 Consolidation, Merger, Sale or Purchase of Assets, etc.. 46
8.03 Liens................................................... 47
8.04 Indebtedness............................................ 49
8.05 Capital Expenditures.................................... 50
8.06 Advances, Investments and Loans......................... 50
8.07 Prepayments of Indebtedness, etc........................ 51
8.08 Dividends............................................... 51 (ii)
8.09 Transactions with Affiliates............................ 52
8.10 Interest Coverage Ratio................................. 53
8.11 Total Leverage Ratio.................................... 54
8.12 Issuance of Stock....................................... 54
8.13 Limitation on Certain Restrictions on Subsidiaries...... 55
8.14 Limitation on Creation of Subsidiaries and Permitted
Joint Ventures.......................................... 55
SECTION 9. Events of Default...................................... 55
9.01 Payments................................................ 55
9.02 Representations, etc.................................... 55
9.03 Covenants............................................... 56
9.04 Default Under Other Agreements.......................... 56
9.05 Bankruptcy, etc......................................... 56
9.06 ERISA................................................... 57
9.07 Security Documents...................................... 57
9.08 Guaranty................................................ 57
9.09 Judgments............................................... 57
9.10 Capital Call Agreement.................................. 57
SECTION 10. Definitions........................................... 58
SECTION 11. The Administrative Agent.............................. 83
11.01 Appointment............................................ 83
11.02 Nature of Duties....................................... 83
11.03 Lack of Reliance on the Administrative Agent........... 84
11.04 Certain Rights of the Administrative Agent............. 84
11.05 Reliance............................................... 84
11.06 Indemnification........................................ 84
11.07 The Administrative Agent in its Individual Capacity.... 85
11.08 Holders................................................ 85
11.09 Resignation by the Administrative Agent................ 85
11.10 Syndication Agent...................................... 86
SECTION 12. Miscellaneous......................................... 86
12.01 Payment of Expenses, etc............................... 86
12.02 Right of Setoff........................................ 86
12.03 Notices................................................ 87
12.04 Benefit of Agreement................................... 87
12.05 No Waiver; Remedies Cumulative......................... 89
12.06 Payments Pro Rata...................................... 89
12.07 Calculations; Computations............................. 90
12.08 Governing Law; Submission to Jurisdiction; Venue;
Waiver of Jury Trial.................................. 90
12.09 Counterparts........................................... 91
12.10 Effectiveness.......................................... 91
12.11 Headings Descriptive................................... 91 (iii)
12.12 Amendment or Waiver; etc............................... 91
12.13 Survival............................................... 93
12.14 Domicile of Loans...................................... 93
12.15 Confidentiality........................................ 93
12.16 Register............................................... 93
ANNEX I - Commitments
ANNEX II - Lender Addresses
ANNEX III - Litigation
ANNEX IV - Existing Indebtedness
ANNEX V - Tax Matters
ANNEX VI - Properties
ANNEX VII - Insurance Policies
ANNEX VIII - Existing Liens
ANNEX IX - Affiliate Transactions
EXHIBIT A - Form of Notice of Borrowing
EXHIBIT B-1 - Form of A Term Note
EXHIBIT B-2 - Form of B Term Note
EXHIBIT B-3 - Form of Revolving Note
EXHIBIT B-4 - Form of Swingline Note
EXHIBIT C - Form of Letter of Credit Request
EXHIBIT D - Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 - Form of Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
EXHIBIT E-2 - Form of Opinion of White & Case LLP
EXHIBIT F - Form of Officers' Certificate
EXHIBIT G - Form of Security Agreement
EXHIBIT H - Form of Capital Call Agreement
EXHIBIT I - Form of Solvency Certificate
EXHIBIT J - Form of Consent Letter
EXHIBIT K - Form of Assignment Agreement
EXHIBIT L - Form of Guaranty
EXHIBIT M - Form of Pledge Agreement (iv)
CREDIT AGREEMENT, dated as of November 23, 1999, among UNILAB
CORPORATION (the "Borrower"), a Delaware corporation, the lending institutions
listed from time to time on Annex I hereto (each, a "Lender" and, collectively,
the "Lenders"), BANKERS TRUST COMPANY, as Administrative Agent (the
"Administrative Agent") and MERRILL LYNCH CAPITAL CORPORATION, as Syndication
Agent (the "Syndication Agent"). Unless otherwise defined herein, all
capitalized terms used herein and defined in Section 10 are used herein as sodefined.
W I T N E S S E T H: -------------------
WHEREAS, the Borrower and the Lenders desire to enter into this
Agreement to provide for the credit facilities described herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit. --------------------------
1.01 Commitments. Subject to and upon the terms and conditions -----------
herein set forth, each Lender severally agrees to make a loan or loans (each, a
"Loan" and, collectively, the "Loans") to the Borrower, which Loans shall be
drawn, to the extent such Lender has a commitment under such Facility, under the
A Term Facility, the B Term Facility and the Revolving Facility, as set forthbelow:
(a) Loans under the A Term Facility (each, an "A Term Loan" and,
collectively, the "A Term Loans") (i) shall be made pursuant to a single
drawing on the Initial Borrowing Date, (ii) may be incurred and maintained
as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided --------
that all A Term Loans outstanding as part of the same Borrowing shall
unless specifically provided herein, consist of A Term Loans of the same
Type and (iii) shall not exceed in aggregate principal amount for any A
Term Lender at the time of incurrence thereof the A Term Commitment of such
A Term Lender in effect on such date. Once repaid, A Term Loans borrowed
hereunder may not be reborrowed.
(b) Loans under the B Term Facility (each a "B Term Loan" and,
collectively, the "B Term Loans") (i) shall be made pursuant to a single
drawing on the Initial Borrowing Date, (ii) may be incurred and maintained
as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided --------
that all B Term Loans outstanding as part of the same Borrowing shall
unless specifically provided herein, consist of B Term Loans of the same
Type and (iii) shall not exceed in aggregate principal amount for any B
Term Lender at the time of incurrence thereof the B Term Commitment of such
B Term Lender in effect on such date. Once repaid, B Term Loans borrowed
hereunder may not be reborrowed.
(c) Loans under the Revolving Facility (each, a "Revolving Loan"
and, collectively, the "Revolving Loans") (i) shall be made at any time and
from time to time on and after the Initial Borrowing Date and prior to the
Revolving Loan Maturity Date, (ii) except as hereinafter provided, may, at
the option of the Borrower, be incurred and maintained as, and/or converted
into, Base Rate Loans or Eurodollar Loans, provided that all --------
Revolving Loans made as part of the same Borrowing shall, unless otherwise
specifically provided herein, consist of Revolving Loans of the same Type,
(iii) may be repaid and reborrowed in accordance with the provisions hereof
and (iv) shall not exceed for any RC Lender at any time outstanding that
aggregate principal amount which, when combined with the aggregate
outstanding principal amount of all other Revolving Loans of such Lender
and such Lender's Adjusted RC Percentage of the sum of (x) the Letter of
Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the
proceeds of, and simultaneously with the incurrence of, the respective
incurrence of Revolving Loans) at such time and (y) the outstanding
principal amount of Swingline Loans (exclusive of Swingline Loans which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time, equals (1) if such
RC Lender is a Non-Defaulting Lender, the Adjusted Revolving Commitment of
such RC Lender at such time and (2) if such RC Lender is a Defaulting
Lender, the Revolving Commitment of such RC Lender at such time.
(d) Subject to and upon the terms and conditions herein set forth,
BTCo in its individual capacity agrees to make at any time and from time to
time after the Initial Borrowing Date and prior to the Swingline Expiry
Date, a loan or loans to the Borrower (each, a "Swingline Loan", and,
collectively, the "Swingline Loans"), which Swingline Loans (i) shall be
made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed
in accordance with the provisions hereof, (iii) shall not exceed in
aggregate principal amount at any time outstanding, when combined with the
aggregate principal amount of all Revolving Loans made by Non-Defaulting
Lenders then outstanding and the Letter of Credit Outstandings (exclusive
of Unpaid Drawings relating to the Letters of Credit which are repaid with
the proceeds of, and simultaneously with the incurrence of, the respective
incurrence of such Swingline Loans) at such time, an amount equal to the
Adjusted Total Revolving Commitment then in effect (after giving effect to
any reductions to the Adjusted Total Revolving Commitment on such date) and
(iv) shall not exceed in aggregate principal amount at any time outstanding
the Maximum Swingline Amount. BTCo will not make a Swingline Loan after it
has received written notice from the Borrower or the Required Lenders
stating that a Default or an Event of Default exists until such time as
BTCo shall have received a written notice of (i) rescission of such notice
from the party or parties originally delivering the same or (ii) a waiver
of such Default or Event of Default from the requisite Lenders hereunder.
(e) On any Business Day, BTCo may, in its sole discretion, give
notice to the RC Lenders that its outstanding Swingline Loans shall be
funded with a Borrowing of Revolving Loans (provided that each such notice
shall be deemed to have been automatically given upon the occurrence of a
Default or an Event of Default under Section 9.05 or upon the exercise of
any of the remedies provided in the last paragraph of Section 9), in which
case a Borrowing of Revolving Loans constituting Base Rate Loans (each such
Borrowing, a "Mandatory Borrowing") shall be made on the immediately
succeeding Business Day by all RC Lenders pro rata based on each RC
--- ----
Lender's Adjusted RC Percentage, and the proceeds thereof shall be applied
directly to repay BTCo for such outstanding Swingline Loans. Each RC
Lender hereby irrevocably agrees to make Base Rate Loans upon one Business
Day's notice pursuant to each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on -2-
the date specified in writing by BTCo notwithstanding (i) that the amount
of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount
otherwise required hereunder, (ii) whether any conditions specified in
Section 5.02 are then satisfied, (iii) whether a Default or an Event of
Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing and (v) any reduction in the Total Revolving Commitment or the
Adjusted Total Revolving Commitment after any such Swingline Loans were
made. In the event that any Mandatory Borrowing cannot for any reason be
made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under the Bankruptcy Code
in respect of the Borrower), each RC Lender (other than BTCo) hereby agrees
that it shall forthwith purchase from BTCo (without recourse or warranty)
such assignment of the outstanding Swingline Loans as shall be necessary to
cause the RC Lenders to share in such Swingline Loans ratably based upon
their respective Adjusted RC Percentages, provided that all interest --------
payable on the Swingline Loans shall be for the account of BTCo until the
date the respective assignment is purchased and, to the extent attributable
to the purchased assignment, shall be payable to the RC Lender purchasing
same from and after such date of purchase.
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount -------------------------------
of each Borrowing under a Facility shall not be less than the Minimum Borrowing
Amount for such Facility. The aggregate principal amount of each Borrowing of
Swingline Loans shall not be less than $100,000. More than one Borrowing may be
incurred on any day, provided that at no time shall there be outstanding more --------
than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to -------------------
incur Loans under any Facility (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), it shall give the Administrative Agent at its Notice
Office, prior to 10:00 A.M. (New York time), at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Loans and at least one Business Day's prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
Base Rate Loans to be made hereunder. Each such notice (each, a "Notice of
Borrowing") shall be in the form of Exhibit A and shall specify (i) the Facility
pursuant to which such Borrowing is being made, (ii) the aggregate principal
amount of the Loans to be made pursuant to such Borrowing, (iii) the date of
Borrowing (which shall be a Business Day) and (iv) whether the respective
Borrowing shall consist of Base Rate Loans or (to the extent permitted)
Eurodollar Loans and, if Eurodollar Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall promptly give each Lender
written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing, of such Lender's proportionate share thereof and of the
other matters covered by the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to make a Borrowing of
Swingline Loans hereunder, it shall give BTCo, prior to 10:00 A.M. (New York
time) on the day such Swingline Loan is to be made, written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Loan to be
made hereunder. Each such notice shall specify in each case (x) the date of
such Borrowing (which shall be a Business Day) and (y) the aggregate principal
amount of the Swingline Loan to be made pursuant to such Borrowing. -3-
(ii) Mandatory Borrowings shall be made upon the notice specified in
Section 1.01(e), with the Borrower irrevocably agreeing, by its incurrence of
any Swingline Loan, to the making of Mandatory Borrowings as set forth in such
Section 1.01(e).
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent, BTCo (in the case of a Borrowing of Swingline Loans) or
the respective Letter of Credit Issuer (in the case of the issuance of Letters
of Credit), as the case may be, may prior to receipt of written confirmation act
without liability upon the basis of such telephonic notice, believed by the
Administrative Agent, BTCo or such Letter of Credit Issuer in good faith to be
from an Authorized Officer of the Borrower. In each such case, the Borrower
hereby waives the right to dispute the Administrative Agent's, BTCo's or any
Letter of Credit Issuer's record of the terms of such telephonic notice (except
in the case of gross negligence or bad faith).
1.04 Disbursement of Funds. (a) No later than 1:00 P.M. (New York ---------------------
time) on the date specified in each Notice of Borrowing or each notice described
in Section 1.03(b)(i) or (ii), each Lender with a Commitment under the
respective Facility will make available its pro rata share of each Borrowing
--- ----
requested to be made on such date (or in the case of Swingline Loans, BTCo shall
make available the full amount thereof) in the manner provided below. All such
amounts shall be made available to the Administrative Agent in immediately
available funds at the Payment Office and the Administrative Agent will promptly
make available to the Borrower by depositing to its account at the Payment
Office the aggregate of the amounts so made available in the type of funds
received. Unless the Administrative Agent shall have been notified by any
Lender prior to the date of Borrowing that such Lender does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Lender
has made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Lender and the
Administrative Agent has made available same to the Borrower, the Administrative
Agent shall be entitled to recover such corresponding amount from such Lender.
If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Lender or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Lender,
the overnight Federal Funds Effective Rate or (y) if paid by the Borrower, the
then applicable rate of interest, calculated in accordance with Section 1.08,
for the respective Loans.
(b) Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights which
the Borrower may have against any Lender as a result of any default by such
Lender hereunder. -4-
1.05 Register. (a) The Borrower's obligation to pay the principal --------
of, and interest on, the Loans made to it by each Lender shall be set forth in
the Register maintained by the Administrative Agent pursuant to Section 12.16
and, if requested by any Lender, shall be evidenced by a promissory note (each a
"Note" and collectively, the "Notes") (i) if A Term Loans, substantially in the
form of Exhibit B-1 with blanks appropriately completed in conformity herewith,
(ii) if B Term Loans, substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith, (iii) if Revolving Loans,
substantially in the form of Exhibit B-3 with blanks appropriately completed in
conformity herewith and (iv) if Swingline Loans, by a promissory note
substantially in the form of Exhibit B-4, with blanks appropriately completed in
conformity herewith.
(b) Each Lender will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will, prior to any
transfer of any of its Notes (if any), endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation, or any error in any such notation, shall not affect the
Borrower's obligations in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert on -----------
any Business Day all or a portion at least equal to the applicable Minimum
Borrowing Amount of the outstanding principal amount of the Loans owing (other
than Swingline Loans, which at all times shall be maintained as Base Rate Loans)
pursuant to a single Facility into a Borrowing or Borrowings pursuant to such
Facility of another Type of Loan, provided that (i) except as otherwise provided --------
in Section 1.10(b), Eurodollar Loans may be converted into Base Rate Loans only
on the last day of an Interest Period applicable thereto and no partial
conversion of a Borrowing of Eurodollar Loans shall reduce the outstanding
principal amount of the Eurodollar Loans made pursuant to such Borrowing to less
than the Minimum Borrowing Amount applicable thereto, (ii) Base Rate Loans may
only be converted into Eurodollar Loans (x) if no Default or Event of Default is
in existence on the date of the conversion, unless the Required Lenders
otherwise agree and (y) if prior to the Syndication Date, on the first day of a
PSD Interest Period and (iii) Borrowings of Eurodollar Loans resulting from this
Section 1.06 shall be limited in number as provided in Section 1.02. Each such
conversion shall be effected by the Borrower giving the Administrative Agent at
its Notice Office, prior to 10:00 A.M. (New York time), at least three Business
Days' (or two Business Days', in the case of a conversion into Base Rate Loans)
prior written notice (or telephonic notice promptly confirmed in writing) (each,
a "Notice of Conversion") specifying the Loans to be so converted, the Type of
Loans to be converted into and, if to be converted into a Borrowing of
Eurodollar Loans, the Interest Period to be initially applicable thereto. The
Administrative Agent shall give each Lender prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Loans under this -------------------
Agreement (other than Swingline Loans) shall be made by the Lenders pro rata on
--- ----
the basis of their Term Commitments or Revolving Commitments, as the case may
be, except that Mandatory Borrowings of Revolving Loans shall be made by the RC
Lenders on the basis of their Adjusted RC Percentage. It is understood that no
Lender shall be responsible for any default by any other Lender in its
obligation to make Loans hereunder and that each Lender shall be obligated to
make the Loans provided to be made by it hereunder, regardless of the failure of
any other Lender to fulfill its commitments hereunder. -5-
1.08 Interest. (a) The unpaid principal amount of each Base Rate --------
Loan shall bear interest from the date of the Borrowing thereof until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such Base
Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06 at a rate per annum which shall at all times be the
Applicable Margin plus the Base Rate in effect from time to time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06, 1.09 or 1.10(b), as applicable, at a rate per annum which shall at all
times be the Applicable Margin plus the relevant Eurodollar Rate.
(c) All overdue principal and, to the extent permitted by law,
overdue interest in respect of each Loan and any other overdue amount (which
other amounts are overdue more than five days) payable hereunder shall bear
interest at a rate per annum equal to the Base Rate in effect from time to time
plus the sum of (i) 2% and (ii) the Applicable Margin, provided that no Loan
--------
shall bear interest after maturity (whether by acceleration or otherwise) at a
rate per annum less than 2% plus the rate of interest applicable thereto at
maturity. Interest which accrues under this Section 1.08(c) shall be payable ondemand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on the last
Business Day of each March, June, September and December, (ii) in respect of
each Eurodollar Loan, on the last day of each Interest Period applicable thereto
and, in the case of an Interest Period in excess of three months, on each date
occurring at three month intervals after the first day of such Interest Period
and (iii) in respect of each Loan, on any prepayment or conversion (other than
the prepayment or conversion of any Revolving Loan that is a Base Rate Loan) on
the amount prepaid or converted, at maturity (whether by acceleration or
otherwise) and, after such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 12.07(b).
(f) The Administrative Agent, upon determining the interest rate for
any Borrowing of Eurodollar Loans for any Interest Period, shall promptly notify
the Borrower and the Lenders thereof.
1.09 Interest Periods. (a) At the time the Borrower gives a Notice ----------------
of Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 10:00 A.M. (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans, it shall have the right to elect by giving the
Administrative Agent written notice (or telephonic notice promptly confirmed in
writing) of the Interest Period applicable to such Borrowing, which Interest
Period shall, at the option of the Borrower, be a one, two, three or six month
period. Notwithstanding anything to the contrary contained above: -6-
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar
Loans shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of Base Rate Loans) and each Interest
Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(iii) if any Interest Period begins on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period, such Interest Period shall end on the last Business Day of
such calendar month;
(iv) if any Interest Period would otherwise expire on a day which
is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided that if any Interest Period would
--------
otherwise expire on a day which is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(v) subject to the foregoing clauses (i) through (iv), inclusive,
only a one month Interest Period shall be available to be selected prior to
the Syndication Date, with all Term Loans constituting Eurodollar Loans
during such period to be outstanding pursuant to a single Borrowing and all
Revolving Loans constituting Eurodollar Loans during such period to be
outstanding pursuant to a single Borrowing, with all such Borrowings to
commence and end on the same day;
(vi) no Interest Period for a Borrowing under a Facility shall
extend beyond the respective Maturity Date for such facility;
(vii) no Interest Period with respect to any Borrowing of A Term
Loans or B Term Loans shall be elected that would extend beyond any date
upon which a Scheduled Repayment is required to be made if, after giving
effect to the selection of such Interest Period, the aggregate principal
amount of such A Term Loans or B Term Loans, as the case may be, maintained
as Eurodollar Loans with Interest Periods ending after such date would
exceed the aggregate principal amount of such A Term Loans or B Term Loans,
as the case may be, permitted to be outstanding after such Scheduled
Repayment; and
(viii) no Interest Period may be elected at any time when a Default
or an Event of Default is then is existence unless the Required Lenders
otherwise agree.
(b) If upon the expiration of any Interest Period, the Borrower
has failed to (or may not) elect a new Interest Period to be applicable to the
respective Borrowing of Eurodollar Loans as provided above, the Borrower shall
be deemed to have elected to convert such Borrowing into a Borrowing of Base
Rate Loans effective as of the expiration date of such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that (x) ---------------------------------
in the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Lender -7-
shall have determined (which determination shall, absent manifest error, be
final and conclusive and binding upon all parties hereto):
(i) on any date for determining the Eurodollar Rate for any Interest
Period that, by reason of any changes arising after the date of this
Agreement affecting the interbank Eurodollar market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the
basis provided for in the definition of Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans (other than any increased cost or reduction in the
amount received or receivable resulting from the imposition of or a change
in the rate of taxes, assessments or similar charges) because of (x) any
change since the Effective Date in any applicable law, governmental rule,
regulation, guideline or order (or in the interpretation or administration
thereof and including the introduction of any new law or governmental rule,
regulation, guideline or order) (such as, for example, but not limited to,
a change in official reserve requirements, but, in all events, excluding
reserves required under Regulation D to the extent included in the
computation of the Eurodollar Rate) and/or (y) other circumstances
affecting such Lender, the interbank Eurodollar market or the position of
such Lender in such market; or
(iii) at any time, that the making or continuance of any Eurodollar
Loan has become unlawful by compliance by such Lender in good faith with
any law, governmental rule, regulation, guideline or order (or would
conflict with any such governmental rule, regulation, guideline or order
not having the force of law but with which such Lender customarily complies
even though the failure to comply therewith would not be unlawful), or has
become impracticable as a result of a contingency occurring after the
Effective Date which materially and adversely affects the interbank
eurodollar market;
then, and in any such event, such Lender (or the Administrative Agent in the
case of clause (i) above) shall (x) on such date and (y) within ten Business
Days of the date on which such event no longer exists give notice (by telephone
confirmed in writing) to the Borrower and (except in the case of clause (i)) to
the Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice by the Administrative
Agent no longer exist, and any Notice of Borrowing or Notice of Conversion given
by the Borrower with respect to Eurodollar Loans which have not yet been
incurred shall be deemed rescinded by the Borrower, (y) in the case of clause
(ii) above, the Borrower shall pay to such Lender, upon written demand therefor,
such additional amounts (in the form of an increased rate of, or a different
method of calculating, interest or otherwise as such Lender in its sole
discretion shall determine) as shall be required to compensate such Lender for
such increased costs or reductions in amounts receivable hereunder (a written
notice as to the additional amounts owed to such Lender, showing the basis for
the calculation thereof, submitted to the Borrower by such Lender shall, absent
manifest error, be final and conclusive and binding upon all parties hereto) and
(z) in the case of clause (iii) above, the Borrower shall take one of the
actions specified in Section 1.10(b) as promptly as possible and, in any event,
within the time period required by law. -8-
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the Borrower was notified by a Lender pursuant to Section 1.10(a)(ii) or
(iii), or (ii) if the affected Eurodollar Loan is then outstanding, upon at
least three Business Days' notice to the Administrative Agent, require the
affected Lender to convert each such Eurodollar Loan into a Base Rate Loan,
provided that if more than one Lender is affected at any time, then all affected
- --------
Lenders must be treated the same pursuant to this Section 1.10(b).
(c) If any Lender shall have determined that after the Effective
Date, the adoption or effectiveness of any applicable law, rule, official
directive or guideline (whether or not having the force of law) or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender or any corporation controlling such Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Lender's or such
corporation's capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy), then from time to time, within 15
days after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such corporation for such reduction. Each Lender, upon
determining in good faith that any additional amounts will be payable pursuant
to this Section 1.10(c), will give prompt written notice thereof to the
Borrower, which notice shall set forth the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not
release or diminish any of the Borrower's obligations to pay additional amounts
pursuant to this Section 1.10(c) upon the subsequent receipt of such notice.
1.11 Compensation. (a) The Borrower shall compensate each Lender, ------------
upon its written request (which request shall set forth the basis for requesting
such compensation), for all reasonable losses, expenses and liabilities
(including, without limitation, any loss, expense or liability incurred by
reason of the liquidation or reemployment of deposits or other funds required by
such Lender to fund its Eurodollar Loans but excluding in any event the loss of
anticipated profits) which such Lender may sustain: (i) if for any reason
(other than a default by such Lender or the Administrative Agent) a Borrowing of
Eurodollar Loans does not occur on a date specified therefor in a Notice of
Borrowing or Notice of Conversion (whether or not withdrawn by the Borrower or
deemed withdrawn pursuant to Section 1.10(a)); (ii) if any prepayment, repayment
or conversion of any of its Eurodollar Loans occurs on a date which is not the
last day of an Interest Period applicable thereto; (iii) if any prepayment of
any of its Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Eurodollar Loans when required by the terms
of this Agreement or (y) an election made pursuant to Section 1.10(b). -9-
(b) Notwithstanding anything in this Agreement to the contrary, to
the extent any notice required by Section 1.10(a)(ii) or (iii), 1.10(c), 2.06 or
4.04 is given by any Lender more than 90 days after such Lender obtained, or
reasonably should have obtained, knowledge of the occurrence of the event giving
rise to the additional costs of the type described in such Section, such Lender
shall not be entitled to compensation under Section 1.10, 2.06 or 4.04 for any
amounts incurred or accruing prior to the giving of such notice to the Borrower.
1.12 Change of Lending Office. Each Lender agrees that, upon the ------------------------
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.06 or 4.04 with respect to such Lender, it will, if requested
by the Borrower, use reasonable efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event, provided that such designation is made on such terms --------
that such Lender and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding the consequence of the event giving
rise to the operation of any such Section. Nothing in this Section 1.12 shall
affect or postpone any of the obligations of the Borrower or the right of any
Lender provided in Section 1.10, 2.06 or 4.04.
1.13 Replacement of Lenders. (x) Upon the occurrence of any event ----------------------
giving rise to the operation of Section 1.10(a)(ii) or (iii), Section 1.10(c),
Section 2.06 or Section 4.04 with respect to any Lender which results in such
Lender charging to the Borrower increased costs in excess of those being
generally charged by the other Lenders, (y) if a Lender becomes a Defaulting
Lender and/or (z) in the case of a refusal by a Lender to consent to a proposed
change, waiver, discharge or termination with respect to this Agreement which
has been approved by the Required Lenders as provided in Section 12.12(b), the
Borrower shall have the right, if no Default or Event of Default then exists (or
in the case of preceding clause (z), no Default or Event of Default will exist
after giving effect to such replacement), to replace such Lender (the "Replaced
Lender") with one or more other Eligible Transferee or Transferees, none of whom
shall constitute a Defaulting Lender at the time of such replacement
(collectively, the "Replacement Lender") reasonably acceptable to the
Administrative Agent, provided that (i) at the time of any replacement pursuant --------
to this Section 1.13, the Replacement Lender shall enter into one or more
Assignment Agreements pursuant to Section 12.04(b) (and with all fees payable
pursuant to said Section 12.04(b) to be paid by the Replacement Lender) pursuant
to which the Replacement Lender shall acquire all of the Commitments and
outstanding Loans of, and in each case participations in Letters of Credit and
Swingline Loans by the Replaced Lender and, in connection therewith, shall pay
to (x) the Replaced Lender in respect thereof an amount equal to the sum of (A)
an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, (B) an amount equal to all Unpaid
Drawings that have been funded by (and not reimbursed to) such Replaced Lender,
together with all then unpaid interest with respect thereto at such time and (C)
an amount equal to all accrued, but theretofore unpaid, Fees owing to the
Replaced Lender pursuant to Section 3.01 and (y) the respective Letter of Credit
Issuer an amount equal to such Replaced Lender's RC Percentage of any Unpaid
Drawing (which at such time remains an Unpaid Drawing) to the extent such amount
was not theretofore funded by such Replaced Lender, and (ii) all obligations of
the Borrower owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid) shall be paid in full to such Replaced
Lender concurrently with such replacement. Upon the execution of the respective
Assignment Agreements, the payment of amounts referred to in clauses (i) and
(ii) above, the
-10-
recordation of the assignment in the Register as provided in Section 12.16 and,
if so requested by the Replacement Lender, delivery to the Replacement Lender of
the appropriate Note or Notes executed by the Borrower, the Replacement Lender
shall become a Lender hereunder and the Replaced Lender shall cease to
constitute a Lender hereunder, except with respect to indemnification provisions
applicable to the Replaced Lender under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.06, 4.04, 12.01 and 12.06), which shall
survive as to such Replaced Lender.
SECTION 2. Letters of Credit. -----------------
2.01 Letters of Credit. (a) Subject to and upon the terms and -----------------
conditions herein set forth, the Borrower may request that a Letter of Credit
Issuer at any time and from time to time on or after the Initial Borrowing Date
and prior to the date which is thirty Business Days prior to the Revolving Loan
Maturity Date issue, for the account of the Borrower and in support of (i) trade
obligations of the Borrower and/or its Subsidiaries, if any (each such letter of
credit a "Trade Letter of Credit" and, collectively, the "Trade Letters of
Credit") and/or (ii) workers' compensation, insurance programs or such other
obligations of the Borrower that are reasonably acceptable to the Administrative
Agent (each such letter of credit, a "Standby Letter of Credit" and,
collectively, the "Standby Letters of Credit" and together with the Trade
Letters of Credit the "Letters of Credit") and, subject to and upon the terms
and conditions herein set forth, such Letter of Credit Issuer agrees to issue
from time to time, irrevocable letters of credit issued on a sight basis, in
such form as may be approved by such Letter of Credit Issuer and the
Administrative Agent. All Letters of Credit shall be denominated in U.S.dollars.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued, the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $5,000,000 or (y) when added to the aggregate principal amount
of all Revolving Loans made by Non-Defaulting Lenders and all Swingline Loans
then outstanding, the Adjusted Total Revolving Commitment at such time and (ii)
(x) each Standby Letter of Credit shall have an expiry date occurring not later
than one year after such Letter of Credit's date of issuance, provided that any --------
such Letter of Credit may be extendible for successive periods of up to 12
months on terms acceptable to the Letter of Credit Issuer and in no event shall
any Standby Letter of Credit have an expiry date occurring later than five
Business Days prior to the Revolving Loan Maturity Date and (y) each Trade
Letter of Credit shall have an expiry date occurring no later than the earlier
of (a) 180 days after the issuance thereof or (b) 30 days prior to the Revolving
Loan Maturity Date.
(c) Notwithstanding the foregoing, in the event a Lender Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless such Letter of Credit Issuer has entered into arrangements
satisfactory to it, the Administrative Agent and the Borrower to eliminate such
Letter of Credit Issuer's risk with respect to the participation in Letters of
Credit of the Defaulting Lender or Lenders, including by cash collateralizing
such Defaulting Lender's or Lenders' Revolving Percentage of the Letter of
Credit Outstandings. -11-
2.02 Minimum Stated Amount. The initial Stated Amount of each Letter ---------------------
of Credit shall be not less than $100,000 or such lesser amount acceptable to
the respective Letter of Credit Issuer.
2.03 Letter of Credit Requests; Notices of Issuance. (a) Whenever ----------------------------------------------
it desires that a Letter of Credit be issued, the Borrower shall give the
Administrative Agent and Letter of Credit Issuer written notice (including by
way of facsimile transmission) in the form of Exhibit C hereto prior to 1:00
P.M. (New York time) at least three Business Days (or such shorter period as may
be acceptable to the Letter of Credit Issuer) prior to the proposed date of
issuance (which shall be a Business Day) (each, a "Letter of Credit Request"),
which Letter of Credit Request shall include any documents that such Letter of
Credit Issuer customarily requires in connection therewith.
(b) Each Letter of Credit Issuer shall, promptly after each issuance
of or amendment to a Standby Letter of Credit by it, give the Administrative
Agent, each RC Lender and the Borrower written notice of the issuance of or
amendment to each Standby Letter of Credit, accompanied by a copy to the
Administrative Agent of such issuance or amendment. If any RC Lender so
requests, the Administrative Agent will provide such RC Lender with copies of
any Standby Letter of Credit or amendments thereto.
(c) In the event that the Letter of Credit Issuer is other than the
Administrative Agent, such Letter of Credit Issuer will send by facsimile
transmission to the Administrative Agent, promptly on the first Business Day of
each week, its daily maximum amount available to be drawn under the Trade
Letters of Credit issued by such Letter of Credit Issuer for the previous week.
The Administrative Agent shall deliver to each Lender upon each calendar month
end, and upon each Trade Letter of Credit fee payment, a report setting forth
the daily maximum amount available to be drawn for all Letter of Credit Issuers
during such period.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower --------------------------------------------
hereby agrees to reimburse the respective Letter of Credit Issuer, by making
payment to the Administrative Agent at the Payment Office, for any payment or
disbursement made by such Letter of Credit Issuer under any Letter of Credit
(each such amount so paid or disbursed until reimbursed, an "Unpaid Drawing")
immediately after, and in any event on the date on which the Borrower is
notified by such Letter of Credit Issuer of such payment or disbursement with
interest on the amount so paid or disbursed by such Letter of Credit Issuer, to
the extent not reimbursed prior to 1:00 P.M. (New York time) on the date of such
payment or disbursement, from and including the date paid or disbursed to but
not including the date such Letter of Credit Issuer is reimbursed therefor at a
rate per annum which shall be the Applicable Margin for Revolving Loans
maintained as Base Rate Loans plus the Base Rate as in effect from time to time
(plus an additional 2% per annum if not reimbursed by the third Business Day
after the date of such notice of payment or disbursement), such interest also to
be payable on demand.
(b) The Borrower's obligation under this Section 2.04 to reimburse
each Letter of Credit Issuer with respect to Unpaid Drawings (including, in each
case, interest thereon) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against such Letter of Credit Issuer,
the Administrative Agent or any Lender, including, without limitation, -12-
any defense based upon the failure of any drawing under a Letter of Credit to
conform to the terms of the Letter of Credit or any non-application or
misapplication by the beneficiary of the proceeds of such drawing; provided, --------
however, that the Borrower shall not be obligated to reimburse such Letter of
- -------
Credit Issuer for any wrongful payment made by such Letter of Credit Issuer
under a Letter of Credit as a result of acts or omissions which are judicially
determined by a court of competent jurisdiction to constitute willful misconduct
or gross negligence on the part of such Letter of Credit Issuer.
2.05 Letter of Credit Participations. (a) Immediately upon the -------------------------------
issuance by any Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other RC
Lender, and each such RC Lender (each, a "Participant") shall be deemed
irrevocably and unconditionally to have purchased and received from such Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Participant's Adjusted RC Percentage, in
such Letter of Credit, each substitute letter of credit, each drawing made
thereunder and the obligations of the Borrower under this Agreement with respect
thereto (although the Letter of Credit Fee shall be payable directly to the
Administrative Agent for the account of the RC Lenders as provided in Section
3.01(b) and the Participants shall have no right to receive any portion of any
Facing Fees) and any security therefor or guaranty pertaining thereto. Upon any
change in the Revolving Commitments or Adjusted RC Percentages of the RC Lenders
pursuant to Sections 1.13 or 12.04(b) or upon a Lender Default, it is hereby
agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings, there shall be an automatic adjustment to the participations pursuant
to this Section 2.05 to reflect the new Adjusted RC Percentages of the assigning
and assignee RC Lender or of all RC Lenders, as the case may be.
(b) In determining whether to pay under any Letter of Credit, the
respective Letter of Credit Issuer shall not have any obligation relative to the
Participants other than to determine that any documents required to be delivered
under such Letter of Credit have been delivered and that they substantially
comply on their face with the requirements of such Letter of Credit. Any action
taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit if taken or omitted in the absence of gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction, shall not create for such Letter of Credit Issuer any resultingliability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to such Letter of Credit Issuer pursuant to Section 2.04(a), such
Letter of Credit Issuer shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Participant of such failure, and
each Participant shall promptly and unconditionally pay to the Administrative
Agent for the account of such Letter of Credit Issuer, the amount of such
Participant's Adjusted RC Percentage of such payment in U.S. dollars and in same
day funds; provided, however, that no Participant shall be obligated to pay to
-------- -------
the Administrative Agent its Adjusted RC Percentage of such unreimbursed amount
for any wrongful payment made by such Letter of Credit Issuer under a Letter of
Credit as a result of acts or omissions judicially determined by a court of
competent jurisdiction to constitute willful misconduct or gross negligence on
the part of such Letter of Credit Issuer. If the Administrative Agent so
notifies any Participant required to fund an Unpaid Drawing under a Letter of
Credit prior to 11:00 A.M. (New York time) on any -13-
Business Day, such Participant shall make available to the Administrative Agent
for the account of the respective Letter of Credit Issuer such Participant's
Adjusted RC Percentage of the amount of such payment on such Business Day in
same day funds. If and to the extent such Participant shall not have so made its
Adjusted RC Percentage of the amount of such Unpaid Drawing available to the
Administrative Agent for the account of such Letter of Credit Issuer, such
Participant agrees to pay to the Administrative Agent for the account of such
Letter of Credit Issuer, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Administrative Agent for the account of any Letter of Credit Issuer at the
overnight Federal Funds Effective Rate. The failure of any Participant to make
available to the Administrative Agent for the account of any Letter of Credit
Issuer its Adjusted RC Percentage of any Unpaid Drawing under any Letter of
Credit shall not relieve any other Participant of its obligation hereunder to
make available to the Administrative Agent for the account of such Letter of
Credit Issuer its Adjusted RC Percentage of any payment under any Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to the
Administrative Agent for the account of such Letter of Credit Issuer such other
Participant's Adjusted RC Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its Adjusted RC Percentage thereof, in U.S. dollars
and in same day funds, an amount equal to such Participant's Adjusted RC
Percentage of the principal amount thereof and interest thereon accruing at the
overnight Federal Funds Effective Rate after the purchase of the respectiveparticipations.
(e) The obligations of the Particip
