Exhibit 4(iii)
THIRD AMENDMENT TO SHORT TERM CREDIT AGREEMENT
THIS THIRD AMENDMENT TO SHORT TERM CREDIT AGREEMENT, dated as of
October 23, 1998 (this "Amendment"), by and between XXXXXXX-XXXXXX CORPORATION,
a Delaware corporation (the "Borrower"), the lenders parties hereto from time to
time (the "Lenders", as defined further below), and MELLON BANK, N.A., a
national banking association, as agent for the Lenders hereunder (in such
capacity, together with its successors in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties to a
Short Term Credit Agreement, dated as of October 29, 1994 (as amended, the
"Credit Agreement"), pursuant to which the Lenders have made Loans to the
Borrower; and
WHEREAS, the Borrower has requested the Lenders to extend the
Expiration Date to October 22, 1999; and
WHEREAS, the Lenders are willing to so extend the Expiration Date
upon the terms and conditions hereinafter set forth; and
WHEREAS, capitalized terms used herein and not otherwise defined
shall have the meanings assigned to them in the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Extension of Expiration Date. The date "October 23, 1998"
appearing in the definition of the term "Expiration Date" in Section 1.01 of the
Credit Agreement is hereby amended to be "October 22, 1999".
2. Conditions Precedent. The effectiveness of this Amendment is
subject to the accuracy as of the date hereof of the representations and
warranties herein contained, to the performance by the Borrower of its
obligations to be performed hereunder on or before the date hereof and to the
satisfaction, on or before October 23, 1998 (the date of such satisfaction being
referred to herein as the "Effective Date"), of the following further conditions
precedent:
(a) Amendment. Each Lender shall have received a
counterpart of this Amendment, duly executed by the Borrower.
(b) Representations and Warranties; Events of Default
and Potential Defaults. The representations and warranties
contained in Section 3 hereof shall be true and correct on and
as of the Effective Date with the same effect as though made
on and as of such date. On the Effective Date, no Event of
Default and no Potential Default shall have occurred and be
continuing or shall exist or shall occur or exist after giving
effect to this Amendment and the transactions contemplated
hereby. By execution of this Amendment, the Borrower certifies
to the Lenders that (a) the representations and warranties set
forth in Section 3 hereof are true and correct on and as of
such date and (b) on such date no Event of Default or
Potential Default has occurred and is continuing or exists or
will occur or exist after giving effect to this Amendment and
the transactions contemplated hereby.
3. Representations and Warranties. The Borrower hereby represents
and warrants to the Agent and the Lenders that the representations and
warranties set forth in the Credit Agreement, as amended by this Amendment, are
true and correct on and as of the date hereof as if made on and as of the date
hereof, and that no Event of Default or Potential Default has occurred and is
continuing or exists on and as of the date hereof; provided, however, that, for
purposes of the foregoing, all references in the Credit Agreement to "this
Agreement" shall be deemed to be references to this Amendment and the Credit
Agreement as amended by this Amendment.
4. Effectiveness of Amendment. This Amendment shall be effective
from and after the Effective Date upon satisfaction of the conditions precedent
referred to herein.
5. Effect of Amendment. The Credit Agreement, as amended by this
Amendment, is in all respects ratified, approved and confirmed and shall, as so
amended, remain in full force and effect.
6. Governing Law. This Amendment shall be deemed to be a contract
under the laws of the State of New York and for all purposes shall be governed
by and construed and enforced in accordance with the laws of said State.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first above written.
XXXXXXX-XXXXXX CORPORATION
By /s/ Xxxx Xxxxxxxx
Title Treasurer
MELLON BANK, N.A., individually and as
Agent
By /s/ Xxxxx X. Xxxxx
Title Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxx X. Land
Title Vice President
THE BANK OF NOVA SCOTIA
By /s/ Xxxxx Xxxxx
Title Senior Relationship Manager
FOURTH AMENDMENT TO SHORT TERM CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SHORT TERM CREDIT AGREEMENT, dated as
of December 28, 1998 (this "Amendment"), by and between XXXXXXX-XXXXXX
CORPORATION, a Delaware corporation (the "Borrower"), the lenders parties hereto
from time to time (the "Lenders", as defined further below), and MELLON BANK,
N.A., a national banking association, as agent for the Lenders hereunder (in
such capacity, together with its successors in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties
to a Short Term Credit Agreement, dated as of October 29, 1994 (as amended, the
"Credit Agreement"), pursuant to which the Lenders have made Loans to the
Borrower; and
WHEREAS, the Borrower has requested the Lenders to amend
certain provisions of the Credit Agreement and to add certain terms thereto; and
WHEREAS, the Lenders are willing to amend the Credit Agreement
upon the terms and conditions hereinafter set forth; and
WHEREAS, capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Amendments to Credit Agreement. The Credit Agreement is
hereby amended as follows:
1.1 Section 1.01 is hereby amended as follows:
(i) The following definitions shall be added thereto
in the proper alphabetical order:
"As-Offered Rate" shall have the meaning set forth in
Section 2.04(a) hereof.
"Dollar Equivalent Amount" of any Revolving Credit
Loan shall mean (a) with respect to a Revolving Credit Loan denominated
in an Other Currency, an amount equal to the amount of Dollars that the
amount of such Other Currency (equal to the principal amount of such
Revolving Credit Loan) could purchase at 12:00 p.m., noon, Pittsburgh
time, on the date of determination, based upon the quoted spot rates of
the Agent, at which its applicable branch or office offers to exchange
Dollars for such currency in the foreign exchange market and (b) with
respect to a Revolving Credit Loan denominated in US Currency, an
amount in Dollars equal to the principal amount of such Revolving
Credit Loan.
"Other Currency" shall mean British Pounds, Swiss
Francs, Belgium Francs, French Francs, Italian Lira, German Marks,
Eurodollars, Singapore Dollars, Dutch Guilders, Denmark Krone and any
freely available currency that is freely transferable and freely
convertible into Dollars and requested by the Borrower and acceptable
to all of the Lenders and to the Agent.
"Subsidiary Borrower" shall mean Xxxxxxx-Xxxxxx
Flight Systems, Inc., a Delaware corporation; Metal Improvement
Company, Inc., a Delaware corporation; Xxxxxxx-Xxxxxx Flow Control
Corporation, a New York corporation; Xxxxxxx-Xxxxxx Flow Control
Service Corporation, a Delaware corporation; Xxxxxxx-Xxxxxx Foreign
Sales Corp., a Barbados corporation; Xxxxxxx-Xxxxxx Flight Systems
Europe A/S, a Danish corporation. Subsidiary Borrower shall also
include (i) Xxxxxxx-Xxxxxx Antriebstechnik GmbH, upon its formation as
a wholly owned subsidiary of Xxxxxxx-Xxxxxx Corporation, and (ii) SIG
Antriebstechnik Ag, upon the consummation of the purchased of its
issued and outstanding capital stock by Xxxxxxx-Xxxxxx Corporation or a
wholly owned subsidiary of Xxxxxxx-Xxxxxx Corporation.
"US Currency" shall mean Dollars.
(ii) The following definitions set forth in Section 1.01 shall
be amended as follows:
"Loan Documents" shall be amended by adding ", the
Guaranty" in the first line thereof after "the Notes" and before "the
Transfer Supplements".
1.2 Article II is deleted in its entirety and Article II shall
be amended and restated, as attached hereto as Annex A.
1.3 A new Section 8.03 is hereby added:
"8.03. Judgment Currency. If any Lender or the Agent
obtains a judgment against the Borrower in an Other Currency, the
obligations of the Borrower in respect of any sum adjudged to be due to
such Lender or the Agent hereunder or under the Revolving Credit Notes
(the "Judgment Amount") shall be discharged only to the extent that, on
the Business Day following receipt by such Lender or the Agent of the
Judgment Amount in such Other Currency, such Lender or Agent, in
accordance with normal banking procedures, purchases Dollars with the
Judgment Amount in such Other Currency. If the amount of Dollars so
purchased is less than the amount of Dollars that could have been
purchased with the Judgment Amount on the date or dates the Judgment
Amount was originally due and owing to the Lenders or the Agent
hereunder or under the Revolving Credit Notes (the "Original Due Date")
(excluding the portion of the Judgment Amount which has accrued as a
result of the failure of the Borrower to pay the sum originally due
hereunder or under the Revolving Credit Notes when it was originally
due hereunder or under the Revolving Credit Notes) (the "Loss"), the
Borrower agrees, to indemnify such Lender or the Agent, as the case may
be, against the Loss, and if the amount of Dollars so purchased exceeds
the amount of Dollars that could have been purchased with the Judgment
Amount on the Original Due Date, such Lender or the Agent agrees to
remit such excess to the Borrower."
2. Conditions Precedent. The effectiveness of this Amendment
is subject to the accuracy as of the date hereof of the representations and
warranties herein contained, to the performance by the Borrower of its
obligations to be performed hereunder on or before the date hereof and to the
satisfaction, on or before December 28, 1998 (the date of such satisfaction
being referred to herein as the "Effective Date"), of the following further
conditions precedent:
(a) Amendment. Each Lender shall have received a
counterpart of this Amendment, duly executed by the Borrower.
(b) Representations and Warranties; Events of Default
and Potential Defaults. The representations and warranties
contained in Section 3 hereof shall be true and correct on and
as of the Effective Date with the same effect as though made
on and as of such date. On the Effective Date, no Event of
Default and no Potential Default shall have occurred and be
continuing or shall exist and shall occur or exist after
giving effect to this Amendment and the transactions
contemplated hereby. On the Effective Date, there shall have
been delivered to the Agent a certificate, dated the Effective
Date and signed on behalf of the Borrower by the President,
Treasurer or chief financial officer of the Borrower, that (a)
the representations and warranties set forth in Section 3
hereof are true and correct on and as of such date and (b) on
such date no Event of Default or Potential Default has
occurred and is continuing or exists or will occur or exist
after giving effect to this Amendment and the transactions
contemplated hereby.
(c) Proceedings and Incumbency. On the Effective
Date, there shall have been delivered to the Agent with an
original counterpart for each Lender a certificate, dated the
Effective Date and signed on behalf of the Borrower by the
Secretary or an Assistant Secretary of the Borrower,
certifying as to (i) true copies of the articles of
incorporation and bylaws of the Borrower as in effect on such
date (or a certificate of the Secretary or Assistant Secretary
of the Borrower to the effect that there have been no changes
in such articles of incorporation or bylaws from the forms
thereof previously delivered to the Agent and the Lenders or,
if there have been any such changes, attaching copies
thereof), (ii) true copies of all corporate action taken by
the Borrower relative to this Amendment and (iii) the names,
true signatures and incumbency of the officer or officers of
the Borrower authorized to execute and deliver this Amendment
and the other documents and instrument to be executed and
delivered under the Credit Agreement, as amended hereby. The
Agent shall be entitled to conclusively rely on such
certificate unless and until a later certificate revising the
prior certificate has been furnished to the Agent.
(d) Opinions of Counsel. On the Effective Date, there
shall have been delivered to the Agent written opinions, dated
the Effective Date, of the General Counsel to the Borrower in
form and substance satisfactory to the Agent and as to such
matters incident to the transactions contemplated hereby as
the Agent may reasonably request.
(e) Details, Proceedings and Documents. All legal
details and proceedings in connection with the transactions
contemplated by this Amendment shall be satisfactory to the
Lenders, and, on the Effective Date, the Agent shall have
received all such counterpart originals or certified or other
copies of such documents and proceedings in connection with
such transactions, in form and substance satisfactory to the
Agent and the Lenders, as the Agent or any Lender may
reasonably request.
3. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders that the representations
and warranties set forth in the Credit Agreement, as amended by this Amendment,
are true and correct on and as of the date hereof as if made on and as of the
date hereof, and that no Event of Default or Potential Default has occurred and
is continuing or exists on and as of the date hereof; provided, however, that,
for purposes of the foregoing, all references in the Credit Agreement to "this
Agreement" shall be deemed to be references to this Amendment and the Credit
Agreement as amended by this Amendment.
4. Effectiveness of Amendment. This Amendment shall be
effective from and after the Effective Date upon satisfaction of the conditions
precedent referred to herein.
5. Effect of Amendment. The Credit Agreement, as amended by
this Amendment, is in all respects ratified, approved and confirmed and shall,
as so amended, remain in full force and effect.
6. Governing Law. This Amendment shall be deemed to be a
contract under the laws of the State of New York and for all purposes shall be
governed by, construed and enforced in accordance with the laws of the State of
New York, without regard to principles of conflicts of law.
7. Counterparts. This Amendment may be executed in any number
of counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
XXXXXXX-XXXXXX CORPORATION
By /s/ Xxxx Xxxxxxxx
Title Treasurer
MELLON BANK, N.A., individually and as
Agent
By /s/ Xxxxx X. Xxxxx
Title Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxx X. Land
Title Vice President
THE BANK OF NOVA SCOTIA
By /s/ Xxxxx Xxxxx
Title Senior Relationship Manager
XXXXXXX-XXXXXX CORPORATION
Subsidiary Note
$ Pittsburgh, Pennsylvania
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FOR VALUE RECEIVED, the undersigned, [INSERT PROPER NAME OF
SUBSIDIARY] (the "Borrower"), promises to pay to the order of [INSERT PROPER
NAME OF THE LENDER] (the "Lender") on or before the Expiration Date (as defined
in the Agreement referred to below), and at such earlier dates as may be
required by such Agreement, the lesser of (i) the principal sum of
($ ) or (ii) the aggregate
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unpaid principal amount of all Revolving Credit Loans made by the Lender to the
Borrower from time to time pursuant to the Agreement. The Borrower further
promises to pay to the order of the Lender interest on the unpaid principal
amount hereof from time to time outstanding at the rate or rates per annum
determined pursuant to the Agreement, payable on the dates set forth in the
Agreement.
This Note is one of the "Subsidiary Notes" as referred to in,
and is entitled to the benefits of, the Short Term Credit Agreement, dated as of
October 29, 1994, as amended, by and among the Borrower, the Lenders parties
thereto from time to time, the Issuing Banks from time to time thereunder, and
Mellon Bank, N.A., as Agent (as the same may be amended, modified or
supplemented from time to time, the "Agreement"), which among other things
provides for the acceleration of the maturity hereof upon the occurrence of
certain events and for prepayments in certain circumstances and upon certain
terms and conditions. Terms defined in the Agreement have the same meanings
herein.
The Borrower hereby expressly waives presentment, demand,
notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Note and the
Agreement, and an action for amounts due hereunder or thereunder shall
immediately accrue.
This Note shall be governed by, construed and enforced in
accordance with the laws of the State of New York, without regard to principles
of conflicts of law.
[INSERT PROPER NAME OF THE SUBSIDIARY]
By:
Name:
Title:
Annex A
ARTICLE II
THE CREDITS
2.01. Revolving Credit Loans.
(a) Revolving Credit Commitments. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth,
each Lender, severally and not jointly, agrees (such agreement being herein
called such Lender's "Revolving Credit Commitment") to make loans in either US
Currency or in an Other Currency (the "Revolving Credit Loans") to the Borrower
at any time or from time to time on or after the date hereof and to but not
including the Expiration Date.
Subject to the terms and conditions herein, each Lender agrees
to make Loans to any Subsidiary Borrower at any time or from time to time on or
after the date hereof and to but not including the Expiration Date. The Loans
shall be made to such Subsidiary Borrower upon the completion of the following
conditions: (i) submit Standard Notice under Section 2.03 hereof, (ii)
Xxxxxxx-Xxxxxx Corporation executes and delivers to the Agent a Guaranty and
Suretyship Agreement in favor of Lenders in the form as attached hereto as
Exhibit B (the "Guaranty"), and (iii) the obligation of such Subsidiary Borrower
to repay the unpaid principal amount of the Revolving Credit Loans made to it by
each Lender and to pay interest thereon shall be evidenced in part by promissory
notes from such Subsidiary Borrower to each Lender in substantially the form
attached hereto as Exhibit C (the "Subsidiary Borrower Notes"). In the event
that a Subsidiary Borrower becomes a Borrower under this Section 2.01(a), all
references to "Borrower" herein shall be deemed to include such Subsidiary
Borrower.
A Lender shall have no obligation to make any Revolving Credit
Loan to the extent that the aggregate principal amount of such Lender's Pro Rata
share of the total Revolving Credit Loans at any time outstanding would exceed
such Lender's Revolving Credit Committed Amount at such time. Each Lender's
"Revolving Credit Committed Amount" at any time shall be equal to the amount set
forth as its "Initial Revolving Credit Committed Amount" below its name on the
signature pages hereof, as either such amount may have been reduced under
Section 2.02 hereof at such time, and subject to transfer to another Lender as
provided in Section 8.14 hereof.
(b) Nature of Credit. Within the limits of time and amount set
forth in this Section 2.01, and subject to the provisions of this Agreement, the
Borrower may borrow, repay and reborrow Revolving Credit Loans hereunder.
(c) Revolving Credit Notes. The obligation of the Borrower to
repay the unpaid principal amount of the Revolving Credit Loans made to it by
each Lender and to pay interest thereon shall be evidenced in part by (i)
promissory notes of the Borrower, one to each Lender, dated the Closing Date
(the "Borrower Notes") in substantially the form attached hereto as Exhibit A,
with the blanks appropriately filled, payable to the order of such Lender in a
face amount equal to such Lender's Initial Revolving Credit Committed Amount and
(ii) the Subsidiary Notes (the Borrower Notes and the Subsidiary Notes are
collectively the "Revolving Credit Notes").
(d) Maturity. To the extent not due and payable earlier, the
Revolving Credit Loans shall be due and payable on the Expiration Date.
2.02. Fees; Reduction of the Committed Amounts.
(a) Commitment Fee. The Borrower shall pay to the Agent for
the account of each Lender a commitment fee (the "Commitment Fee") equal to
0.125% per annum (based on a year of 365 or 366 days, as the case may be, and
actual days elapsed), for each day from and including the date hereof to but not
including the Expiration Date, on the amount (not less than zero) equal to (i)
such Lender's Revolving Credit Committed Amount on such day, minus (ii) the
aggregate principal amount of such Lender's Revolving Credit Loans outstanding
on such day. Such Commitment Fee shall be due and payable for the preceding
period for which such fee has not been paid (x) on each Regular Payment Date,
(y) on the date of each reduction of the Revolving Credit Committed Amount
(whether optional or mandatory) on the amount so reduced and (z) on the
Expiration Date.
(b) Reduction of the Revolving Credit Committed Amounts. The
Borrower may at any time or from time to time reduce Pro Rata the Revolving
Credit Committed Amounts of the Lenders to an aggregate amount (which may be
zero) not less than the sum of the unpaid principal amount of the Revolving
Credit Loans then outstanding plus the principal amount of all Revolving Credit
Loans not yet made as to which notice has been given by the Borrower under
Section 2.03 hereof. Any reduction of the Revolving Credit Committed Amounts
shall be in an aggregate amount which is a minimum amount of $5,000,000 and
integral multiples of $500,000 thereof. Reduction of the Revolving Credit
Committed Amounts shall be made by providing not less than 30 days' notice
(which notice shall be irrevocable) to such effect to the Agent. After the date
specified in such notice the Revolving Credit Commitment Fee shall be calculated
upon the Revolving Credit Committed Amounts as so reduced. Upon reduction of the
Revolving Credit Committed Amounts to zero, payment in full of all Loans, this
Agreement shall be terminated. After the date specified in such notice the
Commitment Fee shall be calculated upon the Revolving Credit Committed Amounts
as so reduced.
2.03. Making of Loans. Whenever the Borrower desires that the
Lenders make Revolving Credit Loans, the Borrower shall provide Standard Notice
to the Agent setting forth the following information:
(a) The currency, which shall be either US Currency or an
Other Currency, in which such Revolving Credit Loans are to be made;
(b) The party making the borrowing thereunder;
(c) The date, which shall be a Business Day, on which such
proposed Loans are to be made;
(d) The aggregate principal amount of such proposed Loans,
which shall be the sum of the principal amounts selected pursuant to
clause (e) of this Section 2.03;
(e) The interest rate Option or Options selected in accordance
with Section 2.04(a) hereof and the principal amounts selected in
accordance with Section 2.04(d) hereof of the Base Rate Portion and
each Funding Segment of the CD Rate Portion and the Euro-Rate Portion,
as the case may be, of such proposed Loans; and
(f) With respect to each such Funding Segment of such proposed
Loans, the Funding Period to apply to such Funding Segment, selected in
accordance with Section 2.04(c) hereof.
Standard Notice having been so provided, the Agent shall promptly notify each
Lender of the information contained therein and of the amount of such Lender's
Loan. Unless any applicable condition specified in Article V hereof has not been
satisfied, on the date specified in such Standard Notice each Lender shall make
the proceeds of its Loan available to the Agent (a) with respect to a Loan
denominated in US Currency, at the Agent's Office, no later than 12:00 o'clock
Noon, Pittsburgh time, in funds immediately available at such Office, and (b)
with respect to a Loan denominated in an Other Currency, at the Agent's London
Office, no later than 12:00 o'clock Noon, London time, in funds immediately
available at such London Office. The Agent will make the funds so received
available to the Borrower in funds immediately available at the Agent's Office
or London Office, as the case may be.
2.04. Interest Rates.
(a) Optional Bases of Borrowing. The unpaid principal amount
of the Loans shall bear interest for each day until due on one or more bases
selected by the Borrower from among the interest rate options set forth below.
Subject to the provisions of this Agreement the Borrower may select different
options to apply simultaneously to different Portions of the Loans and may
select different Funding Segments to apply simultaneously to different parts of
the CD Rate Portion or the Euro-Rate Portion of the Loans. The aggregate number
of Funding Segments applicable to the CD Rate Portion and the Euro-Rate Portion
of the Revolving Credit Loans at any time shall not exceed five.
(i) Base Rate Option: A rate per annum (computed on the basis
of a year of 365 or 366 days, as the case may be, and actual days
elapsed) for each day equal to the Base Rate for such day plus the
Applicable Margin for such day. The "Base Rate" for any day shall mean
the greater of (A) the Prime Rate for such day or (B) 0.625% plus the
Federal Funds Effective Rate for such day, such interest rate to change
automatically from time to time effective as of the effective date of
each change in the Prime Rate or the Federal Funds Effective Rate.
(ii) CD Rate Option: A rate per annum (based on a year of 360
days and actual days elapsed) for each day equal to the CD Rate for
such day plus the Applicable Margin for such day. "CD Rate" for any day
shall mean for each Funding Segment of the CD Rate Portion
corresponding to a proposed or existing CD Rate Funding Period the rate
per annum determined by the Agent by adding:
(A) the rate per annum obtained by dividing (the
resulting quotient to be rounded upward to the nearest 1/100
of 1%) (1) the rate of interest (which shall be the same for
each day in such CD Rate Funding Period) determined in good
faith by the Agent in accordance with its usual procedures
(which determination shall be conclusive absent manifest
error) to be the average of the secondary market bid rates at
or about 11:00 a.m., Eastern time, on the first day of such CD
Rate Funding Period by dealers of recognized standing in
negotiable certificates of deposit for the purchase at face
value of negotiable certificates of deposit of major money
center banks for delivery on such day in amounts comparable to
such Funding Segment and having maturities comparable to such
CD Rate Funding Period by (2) a number equal to 1.00 minus the
CD Rate Reserve Percentage for such CD Rate Funding Period
plus
(B) the Assessment Rate.
The "CD Rate" may also be expressed by the following formula:
[average of the secondary market ]
[bid rates determined by the Agent ]
CD Rate = [per subsection (A)(1) ] + Assessment Rate
[1.00 - CD Rate Reserve Percentage]
"CD Rate Reserve Percentage" for any day and for any CD Rate
Funding Period shall mean the percentage (expressed as a decimal,
rounded upward to the nearest 1/100 of 1%), as determined in good faith
by the Agent (which determination shall be conclusive absent manifest
error), which is in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) representing
the maximum reserve requirement (including without limitation
supplemental, marginal and emergency reserve requirements) for a member
bank of such System in respect of nonpersonal time deposits in Dollars
in the United States having a maturity comparable to such CD Rate
Funding Period. The CD Rate shall be adjusted automatically as of the
effective date of each change in the CD Rate Reserve Percentage. The CD
Rate Option shall be calculated in accordance with the foregoing
whether or not any Lender is actually required to hold such reserves in
connection with its funding hereof or, if required to hold such
reserves, is required to hold reserves at the "CD Rate Reserve
Percentage" as herein defined.
"Assessment Rate" for any day shall mean the rate per annum
(rounded upward to the nearest 1/100 of 1%) determined in good faith by
the Agent in accordance with its usual procedures (which determination
shall be conclusive absent manifest error) to be the maximum rate per
annum payable by a depository institution insured by the Federal
Deposit Insurance Corporation (or any successor) for such day as an
assessment for insurance on Dollar time deposits, exclusive of any
credit that is or may be allowed against such assessment on account of
assessment payments made or to be made by such depository institution.
The CD Rate shall be adjusted automatically as of the effective date of
each change in the Assessment Rate. The CD Rate Option shall be
calculated in accordance with the foregoing whether or not any Lender
is actually required to pay Federal Deposit Insurance Corporation
assessments or, if required to pay such assessments, is required to pay
such assessments at the "Assessment Rate" as herein defined.
The Agent shall give prompt notice to the Borrower and to the
Lenders of the CD Rate determined or adjusted in accordance with the
definition of CD Rate, which determination or adjustment shall be
conclusive absent manifest error.
(iii) Euro-Rate Option: A rate per annum (based on a year of
365 days and actual days elapsed) for each day equal to the Euro-Rate
for such day plus the Applicable Margin for such day. "Euro-Rate" for
any day, as used herein, shall mean for each Funding Segment of the
Euro-Rate Portion corresponding to a proposed or existing Euro-Rate
Funding Period the rate per annum determined by the Agent by dividing
(the resulting quotient to be rounded upward to the nearest 1/100 of
1%) (A) the rate of interest (which shall be the same for each day in
such Euro-Rate Funding Period) determined in good faith by the Agent in
accordance with its usual procedures (which determination shall be
conclusive absent manifest error) to be the average of the rates per
annum for deposits in US Currency or any Other Currency, as applicable,
offered to major money center banks in the London interbank market at
approximately 11:00 a.m., London time, two London Business Days prior
to the first day of such Euro-Rate Funding Period for delivery on the
first day of such Euro-Rate Funding Period in amounts comparable to
such Funding Segment and having maturities comparable to such Funding
Period by (B) a number equal to
1.00 minus the Euro-Rate Reserve Percentage.
The "Euro-Rate" may also be expressed by the following
formula:
[average of the rates offered to major money ]
[center banks in the London interbank market]
Euro-Rate = [determined by the Agent per subsection (A) ]
[1.00 - Euro-Rate Reserve Percentage ]
"Euro-Rate Reserve Percentage" for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100
of 1%), as determined in good faith by the Agent (which determination
shall be conclusive absent manifest error), which is in effect on such
day as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) representing the maximum reserve requirement
(including, without limitation, supplemental, marginal and emergency
reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities") of a member bank in such
System. The Euro-Rate shall be adjusted automatically as of the
effective date of each change in the Euro-Rate Reserve Percentage. The
Euro-Rate Option shall be calculated in accordance with the foregoing
whether or not any Lender is actually required to hold reserves in
connection with its eurocurrency funding or, if required to hold such
reserves, is required to hold reserves at the "Euro-Rate Reserve
Percentage" as herein defined.
The Agent shall give prompt notice to the Borrower and to the
Lenders of the Euro-Rate determined or adjusted in accordance with the
definition of the Euro-Rate, which determination or adjustment shall be
conclusive absent manifest error.
(iv) As-Offered Rate Option. A rate per annum (computed on the
basis of a year of 360 days and actual days elapsed) for each day equal
to the "As-Offered Rate" for such day. The "As-Offered Rate" for any
day shall mean such rate per annum as may be offered by the Lenders in
their sole discretion to the Borrower from December 30, 1998 to
December 31, 1998 (the "As-Offered Rate Funding Period") for such
Funding Segment as Lenders shall offer in their sole discretion, which
rate shall remain fixed for the duration of such As-Offered Rate
Funding Period. Without limiting the discretion of Lender or the
generality of the foregoing, the As-Offered Rate (if offered) shall
reflect Lender's fully reserved cost of funds and shall include a
margin of at least 0.625%.
(b) Applicable Margin. The "Applicable Margin" for each
interest rate Option for any day shall
mean the percentage set forth below:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option 0
CD Rate Option 0.625%
Euro Rate Option 0.625%
As-Offered Option 0
(c) Funding Periods. At any time when the Borrower shall
select, convert to or renew the CD Rate Option or the Euro-Rate Option to apply
to any part of the Loans, the Borrower shall specify one or more periods (the
"Funding Periods") during which each such Option shall apply, such Funding
Periods being as set forth below:
Interest Rate Option Available Funding Periods
CD Rate Option
30, 60, 90, 180 days or such
longer period as may be
offered by all of the Lenders
in their sole discretion ("CD
Rate Funding Period"); and
Euro-Rate Option
One, two, three, six months or
one year or such longer period
as may be offered by all of
the Lenders in their sole
discretion ("Euro-Rate Funding
Period");
As-Offered
December 30, 1998 to December
31, 1998 ("As-Offered Funding
Period");
provided, that:
(i) Each CD Rate Funding Period which would otherwise end on a
day which is not a Business Day shall be extended to the next
succeeding Business Day;
(ii) Each Euro-Rate Funding Period shall begin on a London
Business Day, and the term "month", when used in connection with a
Euro-Rate Funding Period, shall be construed in accordance with
prevailing practices in the interbank eurodollar market at the
commencement of such Euro-Rate Funding Period, as determined in good
faith by the Agent (which determination shall be conclusive);
(iii) The Borrower may not select a Funding Period that would
end after the Expiration Date; and
(iv) The Borrower shall, in selecting any Funding Period,
allow for scheduled mandatory payments and foreseeable mandatory
prepayments of the Loans.
(d) Transactional Amounts. Every selection of, conversion
from, conversion to or renewal of an interest rate Option and every payment or
prepayment of any Loans shall be in a principal amount such that after giving
effect thereto the aggregate principal amount of the Base Rate Portion of the
Revolving Credit Loans, or the aggregate principal amount of each Funding
Segment of the CD Rate Portion or the Euro-Rate Portion of the Revolving Credit
Loans, shall be as set forth below:
--------------------------------- ---------------------------------------------
Portion or Funding Segment Allowable Aggregate Principal Amounts
--------------------------------- --------------- -----------------------------
--------------------------------- ---------------------------------------------
Base Rate Portion an integral multiple of 500,000 of US Currency
or the Other Currency denominated by the
Borrower
--------------------------------- ---------------------------------------------
--------------------------------- ---------------------------------------------
Each Funding Segment of the an integral multiple
CD Rate Portion of 500,000 of US Currency or
the Other Currency denominated
by the Borrower
--------------------------------- ---------------------------------------------
--------------------------------- ---------------------------------------------
Each Funding Segment of the an integral multiple of 1,000,000 of US
Euro-Rate Portion Currency or the Other Currency denominated by
the Borrower
--------------------------------- ---------------------------------------------
--------------------------------- ---------------------------------------------
Each Funding Segment of the an integral multiple of 500,000 of US
As-Offered Portion Currency or the Other Currency
denominated by the Borrower
--------------------------------- ---------------------------------------------
(e) CD Rate or Euro-Rate Unascertainable; Impracticability.
If
(i) on any date on which a CD Rate or a Euro-Rate would
otherwise be set the Agent (in the case of clauses (A) or (B) below) or
any Lender (in the case of clause (C) below) shall have determined in
good faith (which determination shall be conclusive absent manifest
error) that:
(A) adequate and reasonable means do not exist for
ascertaining such CD Rate or Euro-Rate,
(B) a contingency has occurred which materially and
adversely affects the secondary market for negotiable
certificates of deposit maintained by dealers of recognized
standing or the interbank eurodollar market, as the case may
be, or
(C) the effective cost to such Lender of funding a
proposed Funding Segment of the CD Rate Portion or the
Euro-Rate Portion from a Corresponding Source of Funds shall
exceed the CD Rate or the Euro-Rate, as the case may be,
applicable to such Funding Segment, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive absent manifest error)
that the making, maintenance or funding of any part of the CD Rate
Portion or the Euro-Rate Portion has been made impracticable or
unlawful by compliance by such Lender or a Notional Euro-Rate Funding
Office in good faith with any Law or guideline or interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof or with any request or
directive of any such Governmental Authority (whether or not having the
force of law);
then, and in any such event, the Agent or such Lender, as the case may be, may
notify the Borrower of such determination (and any Lender giving such notice
shall notify the Agent). Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given), the obligation
of each of the Lenders to allow the Borrower to select, convert to or renew the
CD Rate Option or Euro-Rate Option, as the case may be, shall be suspended until
the Agent or such Lender, as the case may be, shall have later notified the
Borrower (and any Lender giving such notice shall notify the Agent) of the
Agent's or such Lender's determination in good faith (which determination shall
be conclusive absent manifest error) that the circumstance giving rise to such
previous determination no longer exist.
If any Lender notifies the Borrower of a determination under
subsection (ii) of this Section 2.04(e), the CD Rate Portion or the Euro-Rate
Portion, as the case may be, of the Loans of such Lender (the "Affected Lender")
shall automatically be converted to the Base Rate Option as of the date
specified in such notice (and accrued interest thereon shall be due and payable
on such date).
If at the time the Agent or a Lender makes a determination
under subsection (i) or (ii) of this Section 2.04(e) the Borrower previously has
notified the Agent that it wishes to select, convert to or renew the CD Rate
Option or the Euro-Rate Option, as the case may be, with respect to any proposed
Loans but such Loans have not yet been made, such notification shall be deemed
to provide for selection of, conversion to or renewal of the Base Rate Option
instead of the CD Rate Option or the Euro-Rate Option, as the case may be, with
respect to such Loans or, in the case of a determination by a Lender, such Loans
of such Lender.
2.05. Conversion or Renewal of Interest Rate Options.
(a) Conversion or Renewal. Subject to the provisions of
Sections 2.09(c) and 2.10(b) hereof, unless an Event of Default shall have
occurred and be continuing, the Borrower may convert any part of its Loans from
any interest rate Option or Options to one or more different interest rate
Options and may renew the CD Rate Option or the Euro-Rate Option as to any
Funding Segment of the CD Rate Portion or the Euro-Rate Portion:
(i) At any time with respect to conversion from the Base Rate
Option; or
(ii) At the expiration of any Funding Period with respect to
conversions from the As-Offered Option or conversions from or renewals
of the CD Rate Option or the Euro-Rate Option, as the case may be, as
to the Funding Segment corresponding to such expiring Funding Period.
Whenever the Borrower desires to convert or renew any interest rate Option or
Options, the Borrower shall provide to the Agent Standard Notice setting forth
the following information:
(w) The date, which shall be a Business Day, on which the
proposed conversion or renewal is to be made;
(x) The principal amounts selected in accordance with Section
2.04(d) hereof of the Base Rate Portion and each Funding Segment of the
As-Offered Rate Option, the CD Rate Portion and the Euro-Rate Portion,
as the case may be, to be converted from or renewed;
(y) The interest rate Option or Options selected in accordance
with Section 2.04(a) hereof and the principal amounts selected in
accordance with Section 2.04(d) hereof of the Base Rate Portion and
each Funding Segment of the As-Offered Rate Option, the CD Rate Portion
and the Euro-Rate Portion, as the case may be, to be converted; and
(z) With respect to each Funding Segment to be converted to or
renewed, the Funding Period selected in accordance with Section 2.04(c)
hereof to apply to such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed. Interest on the principal amount of any part
of the Loans converted or renewed (automatically or otherwise) shall be due and
payable on the conversion or renewal date.
(b) Failure to Convert or Renew. Absent due notice from the
Borrower of conversion or renewal in the circumstances described in Section
2.05(a)(ii) hereof, any part of the As-Offered Rate Portion, the CD Rate Portion
or Euro-Rate Portion for which such notice is not received shall be converted
automatically to the Base Rate Option on the last day of the expiring Funding
Period; provided, however, that if any Euro-Rate Portion is in an Other
Currency, such portion shall be renewed automatically for one month on the last
day of the expiring Funding Period.
2.06. Prepayments Generally. Whenever the Borrower desires or
is required to prepay any part of its Loans, it shall provide Standard Notice to
the Agent setting forth the following information:
(a) The currency, which shall be either US Currency or an
Other Currency, in which such prepayment is to be made;
(b) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(c) The total principal amount of such prepayment, which shall
be the sum of the principal amounts selected pursuant to clause (c) of
this Section 2.06; and
(d) The principal amounts selected in accordance with Section
2.04(d) hereof of the Base Rate Portion and each part of each Funding
Segment of the As-Offered Rate Option, the CD Rate Portion and the
Euro-Rate Portion, as the case may be, to be prepaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Base Rate Portion and each Funding Segment
of the As-Offered Rate Option, the CD Rate Portion and the Euro-Rate Portion
specified in such notice, together with interest on each such principal amount
to such date, shall be due and payable.
2.07. Optional Prepayments. The Borrower shall have the right
at its option from time to time to prepay its Loans in whole or part without
premium or penalty (subject, however, to Section 2.10(b) hereof):
(a) At any time with respect to any part of the Base Rate
Portion; or
(b) At the expiration of any Funding Period with respect to
prepayment of the As-Offered Rate Option, the CD Rate Portion or the
Euro-Rate Portion, as the case may be, with respect to any part of the
Funding Segment corresponding to such expiring Funding Period.
Any such prepayment shall be made in accordance with Section 2.06 hereof.
2.08. Interest Payment Dates. Interest on the Base Rate
Portion shall be due and payable on each Regular Payment Date. Interest on each
Funding Segment of the As-Offered Portion shall be due and payable on the last
day of the corresponding As-Offered Funding Period. Interest on each Funding
Segment of the CD Rate Portion shall be due and payable on the last day of the
corresponding CD Rate Funding Period and, if such CD Rate Funding Period is
longer than 90 days, also every 90th day during such CD Rate Funding Period.
Interest on each Funding Segment of the Euro-Rate Portion shall be due and
payable on the last day of the corresponding Euro-Rate Funding Period and, if
such Euro-Rate Funding Period is longer than three months, also every third
month during such Funding Period. After maturity of any part of the Loans (by
acceleration or otherwise), interest on such part of the Loans shall be due and
payable on demand.
2.09. Pro Rata Treatment; Payments Generally.
(a) Pro Rata Treatment. Each borrowing and conversion and
renewal of interest rate Options hereunder shall be made, and all payments made
in respect of principal, interest and Revolving Credit Commitment Fees due from
the Borrower hereunder or under the Notes shall be applied, Pro Rata from and to
each Lender, except for payments of interest involving an Affected Lender as
provided in Section 2.04(e) hereof, payments to a Lender under Sections 2.10 or
2.12 hereof. The failure of any Lender to make a Loan shall not relieve any
other Lender of its obligation to lend hereunder, but neither the Agent nor any
Lender shall be responsible for the failure of any other Lender to make a Loan.
(b) Payments Generally. The parties agree that (i) all
payments and prepayments of principal, interest and other amounts in connection
with Loans denominated in US Currency and all fees shall be made in US Currency
and (ii) all payments of principal, interest and other amounts (other than fees)
in connection with Revolving Credit Loans denominated in any Other Currency
shall be made in such Other Currency. All payments and prepayments to be made in
respect of principal, interest, fees or other amounts due from the Borrower in
US Currency shall be payable by 12:00 o'clock noon, Pittsburgh time, on the day
when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived, and an action therefor shall immediately
accrue. Except for payments under Sections 2.10 and 8.06, such payments shall be
made to the Agent at its Office in US Currency in funds immediately available at
such Office without setoff, counterclaim or other deduction of any nature. All
payments and prepayments to be made in respect of principal, interest fees or
other amounts due from the Borrower in any Other Currency shall be payable by
12:00 o'clock noon, London time, on the day when due without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived,
and an action therefor shall immediately accrue. Except for payments under
Sections 2.10 and 8.06, such payments shall be made to the Agent at its London
Office in such Other Currency in funds immediately available at such Office
without setoff, counterclaim or other deduction of any nature. Any payment or
prepayment received (i) in US Currency by the Agent or such Lender after 12:00
o'clock Noon, Pittsburgh time, on any day shall be deemed to have been received
on the next succeeding Business Day and (ii) in any Other Currency by the agent
or such Lender after 12:00 o'clock noon, London time, on any day shall be deemed
to have been received on the next succeeding Business Day. The Agent shall
distribute to the Lenders all such payments received by it from the Borrower as
promptly as practicable after receipt by the Agent.
(c) Default Interest. To the extent permitted by law, from and
after the date on which an Event of Default shall have occurred hereunder, and
so long as such Event of Default continues to exist, principal, interest, fees,
indemnity, expenses or any other amounts due from the Borrower hereunder or
under any other Loan Document, shall bear interest for each day (before and
after judgment), payable on demand, at a rate per annum (in each case based on a
year of 360 days and actual days elapsed) which for each day shall be equal to
the following:
(i) In the case of any part of the As-Offered Portion, the CD
Rate Portion or Euro-Rate Portion of any Loans, (A) until the end of
the applicable then-current Funding Period at a rate per annum 2% above
the rate otherwise applicable to such part, and (B) thereafter in
accordance with the following clause (ii); and
(ii) In the case of any other amount due from the Borrower
hereunder or under any Loan Document, 2% above the then-current Base
Rate Option.
To the extent permitted by law, interest accrued under this Section 2.09 on any
amount shall compound on a day-by-day basis, and hence shall be added daily to
the overdue amount to which such interest relates.
2.10. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From Taxes,
Reserves, Capital Adequacy Requirements, Expenses, Etc. If any Law or guideline
or interpretation or application thereof by any Governmental Authority charged
with the interpretation or administration thereof or compliance with any request
or directive of any Governmental Authority (whether or not having the force of
law) now existing or hereafter adopted:
(i) subjects any Lender or any Notional Euro-Rate Funding
Office to any tax or changes the basis of taxation with respect to this
Agreement, the Notes, the Loans or payments by the Borrower of
principal, interest, commitment fees or other amounts due from the
Borrower hereunder or under the Notes (except for taxes on the overall
net income or overall gross receipts of such Lender or such Notional
Euro-Rate Funding Office imposed by the jurisdictions (federal, state
and local) in which the Lender's principal office or Notional Euro-Rate
Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against credits or commitments
to extend credit extended by, assets (funded or contingent) of,
deposits with or for the account of, other acquisitions of funds by,
such Lender or any Notional Euro-Rate Funding Office (other than
requirements expressly included herein in the determination of the CD
Rate or the Euro-Rate, as the case may be, hereunder),
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or
contingent) of, or credits or commitments to extend credit extended by,
any Lender or any Notional Euro-Rate Funding Office, or (B) otherwise
applicable to the obligations of any Lender or any Notional Euro-Rate
Funding Office under this Agreement, or
(iv) imposes upon any Lender or any Notional Euro-Rate Funding
Office any other condition or expense with respect to this Agreement,
the Notes or its making, maintenance or funding of any Loan or any
security therefor,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender, any Notional Euro-Rate Funding office or, in the case of clause (iii)
hereof, any Person controlling a Lender, with respect to this Agreement, the
Notes or the making, maintenance or funding of any Loan (or, in the case of any
capital adequacy or similar requirement, to have the effect of reducing the rate
of return on such Lender's or controlling Person's capital, taking into
consideration such Lender's or controlling Person's policies with respect to
capital adequacy) by an amount which such Lender deems to be material (such
Lender being deemed for this purpose to have made, maintained or funded each
Funding Segment of the CD Rate Portion and the Euro-Rate Portion from a
Corresponding Source of Funds), such Lender may from time to time notify the
Borrower of the amount determined in good faith (using any averaging and
attribution methods) by such Lender (which determination shall be conclusive) to
be necessary to compensate such Lender or such Notional Euro-Rate Funding Office
for such increase, reduction or imposition. Such amount shall be due and payable
by the Borrower to such Lender five Business Days after such notice is given,
together with an amount equal to interest on such amount from the date two
Business Days after the date demanded until such due date at the Base Rate
Option. A certificate by such Lender as to the amount due and payable under this
Section 2.10(a) from time to time and the method of calculating such amount
shall be conclusive absent manifest error.
(b) Funding Breakage. In addition to all other amounts payable
hereunder, if and to the extent for any reason any part of any Funding Segment
of any As-Offered Portion, CD Rate Portion or Euro-Rate Portion of the Loans
becomes due (by acceleration or otherwise), or is paid, prepaid or converted to
another interest rate Option (whether or not such payment, prepayment or
conversion is mandatory or automatic and whether or not such payment or
prepayment is then due), on a day other than the last day of the corresponding
Funding Period (the date such amount so becomes due, or is so paid, prepaid or
converted, being referred to as the "Funding Breakage Date"), the Borrower shall
pay each Lender an amount ("Funding Breakage Indemnity") determined by such
Lender as follows:
(i) first, calculate the following amount: (A) the principal
amount of such Funding Segment of the Loans owing to such Lender which
so became due, or which was so paid, prepaid or converted, times (B)
the greater of (x) zero or (y) the rate of interest applicable to such
principal amount on the Funding Breakage Date minus the Applicable
Funding Rate as of the Funding Breakage Date, times (C) the number of
days from and including the Funding Breakage Date to but not including
the last day of such Funding Period, times (D) 1/360;
(ii) the Funding Breakage Indemnity to be paid by the Borrower
to such Lender shall be the amount equal to the present value as of the
Funding Breakage Date (discounted at the Applicable Funding Rate as of
such Funding Breakage Date, and calculated on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed) of the
amount described in the preceding clause (i) (which amount described in
the preceding clause (i) is assumed for purposes of such present value
calculation to be payable on the last day of the corresponding Funding
Period).
For purposes of this Section, the term "Applicable Funding Rate" shall mean (i)
in the case of any calculation of a Funding Breakage Indemnity payment with
respect to a particular Funding Segment for which the corresponding Funding
Period was originally one year or longer, the Treasury Rate, and (ii) in the
case of any calculation of a Funding Breakage Indemnity payment with respect to
a Funding Segment for which the corresponding Funding Period was originally less
than one year, the Euro-Rate.
Such Funding Breakage Indemnity shall be due and payable on
demand, and each Lender shall, upon making such demand, notify the Agent of the
amount so demanded. In addition, the Borrower shall, on the due date for payment
of any Funding Breakage Indemnity, pay to such Lender an additional amount equal
to interest on such Funding Breakage Indemnity from the Funding Breakage Date to
but not including such due date at the Base Rate Option applicable to the Loans
(calculated on the basis of a year of 360 days and actual days elapsed). The
amount payable to each Lender under this Section 2.10(b) shall be determined in
good faith by such Lender, and such determination shall be conclusive absent
manifest error.
2.11. HLT Classification. In the event that after the date
hereof the Loans hereunder are classified as a "highly leveraged transaction"
(an "HLT Classification") by any Governmental Authority having jurisdiction over
any Lender, such Lender may in its discretion from time to time so notify the
Agent, and upon receiving such notice the Agent shall promptly give notice of
such event to the Borrower and the Lenders. In such event the parties hereto
shall commence negotiations to agree on revised Revolving Credit Commitment
Fees, interest rates and Applicable Margins hereunder. If the parties hereto
fail to agree on such matters in their respective absolute discretion within 60
days of the notice given by the Agent referred to above, then the Required
Lenders may at any time or from time to time thereafter direct the Agent to (a)
by ten Business Days' notice to the Borrower, terminate the Revolving Credit
Commitments, and the Revolving Credit Commitments shall thereupon terminate, or
(b) by ten Business Days' notice to the Borrower, declare the Loans, together
with (without duplication) accrued interest thereon, to be, and the Loans shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived, and an
action therefor shall immediately accrue. The Lenders acknowledge that an HLT
Classification is not an Event of Default or Potential Default hereunder.
2.12. Taxes.
(a) Payments Net of Taxes. All payments made by the Borrower
under this Agreement or any other Loan Document shall be made free and clear of,
and without reduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, and all liabilities with respect
thereto, excluding
(i) in the case of the Agent and each Lender, income or
franchise taxes imposed on the Agent or such Lender by the jurisdiction
under the laws of which the Agent or such Lender is organized or any
political subdivision or taxing authority thereof or therein or as a
result of a connection between such Lender and any jurisdiction other
than a connection resulting solely from this Agreement and the
transactions contemplated hereby, and
(ii) in the case of each Lender, income or franchise taxes
imposed by any jurisdiction in which such Lender's lending offices
which make or book Loans are located or any political subdivision or
taxing authority thereof or therein
(all such non-excluded taxes, levies, imposts, deductions, charges or
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld or deducted from any amounts payable to the Agent or any Lender under
this Agreement or any other Loan Document, the Borrower shall pay the relevant
amount of such Taxes and the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to the Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
other Loan Documents. Whenever any Taxes are paid by the Borrower with respect
to payments made in connection with this Agreement or any other Loan Document,
as promptly as possible thereafter, the Borrower shall send to the Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower showing payment
thereof.
(b) Indemnity. The Borrower hereby indemnifies the Agent and
each of the Lenders for the full amount of such Taxes and any present or future
claims, liabilities or losses with respect to or resulting from any omission to
pay or delay in paying such Taxes (including any incremental Taxes, interest or
penalties that may become payable by the Agent or such Lender as a result of any
failure to pay such Taxes but excluding any claims, liabilities or losses with
respect to or arising from omissions to pay or delays in payment attributable to
the act or omission of the Agent or any Lender), whether or not such Taxes were
correctly or legally asserted. Such indemnification shall be made within 30 days
from the date such Lender or the Agent, as the case may be, makes written demand
therefor.
(c) Withholding and Backup Withholding. Each Lender that is
incorporated or organized under the laws of any jurisdiction other than the
United States or any state thereof agrees that, on or prior to the date any
payment is due to be made to it hereunder or under any other Loan Document, it
will furnish to the Borrower and the Agent
(i) two valid, duly completed copies of United States Internal
Revenue Service Form 4224 or United States Internal Revenue Form 1001
or successor applicable form, as the case may be, certifying in each
case that such Lender is entitled to receive payments under this
Agreement and the other Loan Documents without deduction or withholding
of any United States federal income taxes and
(ii) a valid, duly completed Internal Revenue Service Form W-8
or W-9 or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding tax.
Each Lender which so delivers to the Borrower and the Agent a Form 1001 or 4224
and Form W-8 or W-9, or successor applicable forms agrees to deliver to the
Borrower and the Agent two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms, or other manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or otherwise is required to be resubmitted as a condition to obtaining
an exemption from withholding tax, or after the occurrence of any event
requiring a change in the most recent form previously delivered by it, and such
extensions or renewals thereof as may reasonably be requested by the Borrower
and the Agent, certifying in the case of a Form 1001 or Form 4224 that such
Lender is entitled to receive payments under this Agreement or any other Loan
Document without deduction or withholding of any United States federal income
taxes, unless in any such cases an event (including any changes in Law) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such letter or form with respect
to it and such Lender advises the Borrower and the Agent that it is not capable
of receiving payments without any deduction or withholding of United States
federal income tax, and in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax.
2.13. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Lender shall have the right from
time to time, prospectively or retrospectively, without notice to the Borrower,
to deem any branch, subsidiary or affiliate of such Lender to have made,
maintained or funded any part of the Euro-Rate Portion at any time. Any branch,
subsidiary or affiliate so deemed shall be known as a "Notional Euro-Rate
Funding office." Such Lender shall deem any part of the Euro-Rate Portion of the
Loans or the funding therefor to have been transferred to a different Notional
Euro-Rate Funding Office if such transfer would avoid or cure an event or
condition described in Section 2.04(e)(ii) hereof or would lessen compensation
payable by the Borrower under Section 2.10(a) hereof, and if such Lender
determines in its sole discretion that such transfer would be practicable and
would not have a Material Adverse Effect on such part of the Loans, such Lender
or any Notional Euro-Rate Funding office (it being assumed for purposes of such
determination that each part of the Euro-Rate Portion is actually made or
maintained by or funded through the corresponding Notional Euro-Rate Funding
Office). Notional Euro-Rate Funding Offices may be selected by such Lender
without regard to such Lender's actual methods of making, maintaining or funding
Loans or any sources of funding actually used by or available to such Lender.
(b) Actual Funding. Each Lender shall have the right from time
to time to make or maintain any part of the Euro-Rate Portion by arranging for a
branch, subsidiary or affiliate of such Lender to make or maintain such part of
the Euro-Rate Portion. Such Lender shall have the right to (i) hold any
applicable Note payable to its order for the benefit and account of such branch,
subsidiary or affiliate or (ii) request the Borrower to issue one or more
substitute promissory notes in the principal amount of such Euro-Rate Portion,
in substantially the form attached hereto as Exhibit A, with the blanks
appropriately filled, payable to such branch, subsidiary or affiliate and with
appropriate changes reflecting that the holder thereof is not obligated to make
any additional Loans to the Borrower; provided, that if a Lender requests the
Borrower to issue one or more substitute promissory notes in accordance with
clause (ii) above, the amount of the Note payable to such Lender shall
automatically be reduced accordingly. The Borrower agrees to comply promptly
with any request under subsection (ii) of this Section 2.13(b). If any Lender
causes a branch, subsidiary or affiliate to make or maintain any part of the
Euro-Rate Portion hereunder, all terms and conditions of this Agreement shall,
except where the context clearly requires otherwise, be applicable to such part
of the Euro-Rate Portion and to any note payable to the order of such branch,
subsidiary or affiliate to the same extent as if such part of the Euro-Rate
Portion were made or maintained and such note were a Revolving Credit Note
payable to such Lender's order.
2.14. Extension of Expiration Date. (a) Extension of
Expiration Date. The Revolving Credit Commitment of the Lenders shall expire and
shall be automatically reduced to zero on the Expiration Date. Not later than 45
days and not sooner than 60 days immediately preceding the Expiration Date then
in effect, if the Borrower wishes the Lenders to extend the Expiration Date for
an additional period (not to exceed 300 days) beyond the Expiration Date then in
effect, the Borrower shall so advise the Agent in writing (an "Extension
Request"). The Agent shall thereupon promptly notify each of the Lenders of such
Extension Request of the Borrower. Within 20 days of its receipt of such
Extension Request from the Borrower, the Agent shall notify the Borrower as to
whether the Lenders have agreed so to extend the Expiration Date and, if so, as
to any additional or different terms on which such extension is conditioned (the
determination of the Lenders as to whether to agree to such extension and upon
what terms being in the sole, absolute and unconditional discretion of each
Lender). If such notice contains any such additional or different terms, the
Borrower shall advise the Agent in writing within 5 days next following receipt
of such notice from the Agent as to whether the Borrower agrees to such terms.
If the Borrower notifies the Agent that it so agrees, or if the Agent's notice
that the Lenders have agreed to extend the Expiration Date contains no such
additional or different terms, the Expiration Date shall automatically be
extended for the additional period requested by the Borrower. If the Agent fails
to notify the Borrower within 20 days of the Agent's receipt of any Extension
Request from the Borrower as specified above as to whether the Lenders have
agreed to such Extension Request, the Lenders shall be deemed not to have agreed
to such Extension Request.
(b) If (i) any Lender notifies the Agent in writing that it
will not consent to such Extension Request or (ii) all of the Lenders have not
in writing expressly consented to any such Extension Request as provided in the
preceding paragraph, then the Agent shall so notify the Borrower and the
Borrower, at its option, may replace each Lender which has not agreed to such
Extension Request (a "Nonextending Lender") with another commercial lending
institution reasonably satisfactory to the Agent (a "Replacement Lender") by
giving notice of the name of such Replacement Lender to the Agent. Unless the
Agent shall object to the identity of such proposed Replacement Lender prior to
the date 5 days prior to the then current Expiration Date, upon notice from the
Agent, each Nonextending Lender shall promptly (but in no event later than the
then current Expiration Date) assign all of its interests hereunder to such
Replacement Lender in accordance with the provisions of Section 8.14(c) hereof.
If, immediately prior to the Expiration Date some, but not all, of the Lenders
have agreed to such Extension Request, and each Nonextending Lender has not been
replaced by the Borrower in accordance with the terms of this Section 2.14(b),
the Expiration Date shall be extended in accordance with such Extension Request;
provided, however, that on the original Expiration Date (as such date may have
been previously extended), the total Revolving Credit Commitment shall be
irrevocably reduced by an amount equal to the Commitment of each Nonextending
Lender. If all Lenders consent to any such Extension Request (or, if any
Nonextending Lenders are replaced in accordance with this Section), then as of
5:00 pm. New York time on the then current Expiration Date, such Expiration Date
shall be deemed to have been extended for the period requested by the Borrower
in the related Extension Request.
2.15. Multicurrency Payments.
(a) Dollar Equivalent Amounts.
(i) Calculation of Dollar Equivalent Amounts. Upon each making
and upon each payment of a Revolving Credit Loan denominated in an Other
Currency, the Agent shall calculate the Dollar Equivalent Amount of such
Revolving Credit Loan, as the case may be, and shall provide written
confirmation to the Lenders.
(ii) Recalculation of Dollar Equivalent Amounts. In
determining the Dollar Equivalent Amount of the aggregate Revolving Credit
Extensions of Credit of the Lenders, the Agent may use the respective Dollar
Equivalent Amounts for the Revolving Credit Loans pursuant to paragraph (i) of
this subsection (a), unless such Dollar Equivalent Amount so calculated exceeds
90% of the Revolving Credit Commitment Amount, in which case the Agent shall
recalculate the Dollar Equivalent Amount of the Revolving Credit Loans
outstanding no less frequently than once each week. The Agent may recalculate
the Dollar Equivalent Amounts of each of the Revolving Credit Loans as
frequently as it determines to do so in its discretion, provided, that such
recalculation shall be made for all of the Revolving Credit Loans no less
frequently than once each week during any period when the aggregate Dollar
Equivalent Amount of the aggregate Credit Exposure of the Lenders exceeds 90% of
the Revolving Credit Commitment Amount.
(b) Unavailability.
(i) General. Subject to paragraph (ii) of this subsection (b),
if, in the reasonable judgment of the Agent, any Other Currency ceases to be
available and freely tradable in the London foreign exchange market, such Other
Currency shall cease to be an Other Currency. The Agent shall give prompt notice
to the Borrower and the Lenders of such event. In the event that (A) the Agent
has determined that an Other Currency has ceased to be available and freely
tradable in the London foreign exchange market and (B) the Agent has determined
in good faith that such Other Currency is not otherwise available to the
Borrower, then, on the date any Revolving Credit Loan denominated in such Other
Currency would become due under the terms of this Agreement (other than as a
result of an optional prepayment under Section 2.07 or of the acceleration of
such Revolving Credit Loans under Section 8.02), the Borrower shall repay such
Revolving Credit Loans by paying to each Lender an amount in Dollars equal to
the amount determined in good faith by such Lender (which determination shall be
conclusive absent manifest error) necessary to compensate such Lender for the
principal of and accrued interest on such Revolving Credit Loans and any
additional cost, expense or loss incurred by such Lender as a result of such
Revolving Credit Loans being repaid in Dollars (rather than in the denominated
Other Currency).
(ii) European Monetary Union.
A. Definitions. In this Section 2.15 and Article II
and in each other provision of this Agreement to which reference is made in this
Section 2.15 expressly or impliedly, the following terms have the meanings given
to them in this Section 2.15:
"commencement of the third stage of EMU" means the
date of commencement of the third stage of EMU (at the date of
this Agreement expected to be January 1, 1999) or the date on
which circumstances arise which (in the opinion of the
Administrative Agent) have substantially the same effect and
result in substantially the same consequences as commencement
of the third stage of EMU as contemplated by the Treaty on
European Union.
"EMU" means economic and monetary union as
contemplated in the Treaty on European Union.
"EMU legislation" means legislative measures of the
European Council for the introduction of, changeover to or
operation of a single or unified European currency (whether
known as the euro or otherwise), being in part the
implementation of the third stage of EMU;
"euro" means the single currency of participating
member states of the European Union;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency
(other than a euro unit) of a participating member state;
"participating member state" means each state so
described in any EMU legislation; and
"Treaty on European Union" means the Treaty of Rome
of March 25, 1957, as amended by the Single Xxxxxxxx Xxx 0000
and the Maastricht Treaty (which was signed at Maastricht on
February 7, 1992, and came into force on November 1, 1993), as
amended from time to time.
B. Effectiveness of Provisions. The provisions of
paragraphs C to G below (inclusive) shall be effective at and from the
commencement of the third stage of EMU, provided, that if and to the extent that
any such provision relates to any state (or the currency of such state) that is
not a participating member state on the commencement of the third stage of EMU,
such provision shall become effective in relation to such state (and the
currency of such state) at and from the date on which such state becomes a
participating member state.
C. Redenomination and Alternative Currencies. Each
obligation under this Agreement of a party to this Agreement which has been
denominated in the national currency unit of a participating member state shall
be redenominated into the euro unit in accordance with EMU legislation,
provided, that if and to the extent that any EMU legislation provides that
following the commencement of the third stage of EMU an amount denominated
either in the euro or in the national currency unit of a participating member
state and payable within that participating member state by crediting an account
of the creditor can be paid by the debtor either in the euro unit or in that
national currency unit, each party to this Agreement shall be entitled to pay or
repay any such amount either in the euro unit or such national currency unit.
D. Business Days. With respect to any amount
denominated or to be denominated in the euro or a national currency unit, any
reference to a "Business Day" shall be construed as a reference to a day (other
than a Saturday or Sunday) on which banks are generally open for business in
London and Pittsburgh, Pennsylvania and/or such principal financial center or
centers in such participating member state or states as the Agent may from time
to time denominate for this purpose.
E. Payments by the Agent Generally. With respect to
the payment of any amount denominated in the euro or in a national currency
unit, the Agent shall not be liable to the Borrower or any of the Lenders in any
way whatsoever for any delay, or the consequences of any delay, in the crediting
to any account of any amount required by this Agreement to be paid by the Agent
if the Agent shall have taken all relevant steps to achieve, on the date
required by this Agreement, the payment of such amount in immediately available,
freely transferable, cleared funds (in the euro unit or, as the case may be, in
a national currency unit) to the account with the bank in the principal
financial center in the participating member state which the Borrower shall have
specified for such purpose. In this paragraph E, "all relevant steps" means all
such steps as may be prescribed from time to time by the regulations or
operating procedures of such clearing or settlement system as the Agent may from
time to time determine for the purpose of clearing or settling payments of euro.
F. Rounding and Other Consequential Changes. Without
prejudice and in addition to any method of conversion or rounding prescribed by
any EMU legislation and without prejudice to the respective liabilities for
indebtedness of the Borrower to the Lenders and the Lenders to the Borrower
under or pursuant to this Agreement:
(i) each reference in this Agreement to a minimum
amount (or an integral multiple thereof) in a national currency unit to
be paid to or by the Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Agent may from time to time specify;
and
(ii) except as expressly provided in this Section
2.15, each provision of this Agreement shall be subject to such
reasonable changes of construction as the Agent may from time to time
specify to be necessary or appropriate to reflect the introduction of
or changeover to the euro in participating member states.
G. Increased Costs. The Borrower shall from time to
time, at the request of the Agent, pay to the Agent for the account of each
Lender the amount of any cost or increased cost incurred by, or of any reduction
in any amount payable to or in the effective return on its capital to, or of
interest or other return foregone by, such Lender or any holding company of such
Lender as a result of the introduction of, changeover to or operation of the
euro in any participating member state.
