$400,000,000
CREDIT AGREEMENT
among
ARROW ELECTRONICS, INC.,
The Several Banks
from Time to Time Parties Hereto,
XXXXXX XXXXXXX SENIOR FUNDING INC.,
as Syndication Agent
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Documentation Agent
and
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Administrative Agent
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Arranger
Dated as of December 18, 2000
TABLE OF CONTENTS
Page
SECTION 1. DEFINITION 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 14
1.3 Accounting Determinations 15
SECTION 2. THE COMMITTED RATE LOANS 15
2.1 Committed Rate Loans 15
2.2 Procedure for Committed Rate Loan Borrowing 15
2.3 Repayment of Committed Rate Loans; Evidence of Debt 16
2.4 Termination or Reduction of Commitments 16
2.5 Prepayments 17
2.6 Conversion and Continuation Options 17
2.7 Minimum Amounts of Tranches 18
2.8 Interest Rates and Payment Dates for Committed Rate Loans 18
2.9 Inability to Determine Interest Rate 18
SECTION 3. [INTENTIONALLY OMITTED] 19
SECTION 4. CERTAIN PROVISIONS APPLICABLE TO THE COMMITTED
RATE LOANS 19
4.1 Fees; Other Payments 19
4.2 Computation of Interest 19
4.3 Pro Rata Treatment and Payments 20
4.4 Illegality 20
4.5 Requirements of Law 21
4.6 Taxes 23
4.7 Borrowers Options upon Claims for Increased Costs
and Taxes 25
4.8 Indemnity 26
4.9 Determinations 26
4.10 Change of Lending Office 27
4.11 Extension of Termination Date. 27
SECTION 5. REPRESENTATIONS AND WARRANTIES 28
5.1 Financial Condition 28
5.2 No Change 29
5.3 Corporate Existence; Compliance with Law 29
5.4 Corporate Power; Authorization; Enforceable Obligations 29
5.5 No Legal Bar 29
5.6 No Material Litigation 30
5.7 No Default 30
5.8 Ownership of Property; Liens 30
5.9 Intellectual Property 30
5.10 [INTENTIONALLY OMITTED] 30
5.11 Taxes 30
5.12 Federal Regulations 31
5.13 ERISA 31
5.14 Investment Company Act; Other Regulations 32
5.15 Subsidiaries 32
5.16 Accuracy and Completeness of Information 32
5.17 Purpose of Committed Rate Loans 33
5.18 Senior Indebtedness 33
5.19 Environmental Matters 33
SECTION 6. CONDITIONS PRECEDENT 34
ECTION 7. AFFIRMATIVE COVENANTS 36
7.1 Financial Statements 36
7.2 Certificates; Other Information 37
7.3 Payment of Obligations 38
7.4 Conduct of Business and Maintenance of Existence 38
7.5 Maintenance of Property; Insurance 39
7.6 Inspection of Property; Books and Records; Discussions 39
7.7 Notices 39
7.8 Environmental Laws 40
7.9 Subsidiary Guarantees 40
7.10 Terms of Refinancing Debt 40
7.11 Wyle Guarantee 41
7.12 Wyle Undertaking 41
SECTION 8. NEGATIVE COVENANTS 41
8.1 Financial Condition Covenants 41
8.2 Limitation on Indebtedness of Domestic Subsidiaries 41
8.3 Limitation on Liens 42
8.4 Limitation on Fundamental Changes 43
SECTION 9. EVENTS OF DEFAULT 43
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER
AND OTHER AGENTS 46
10.1 Appointment 46
10.2 Delegation of Duties 46
10.3 Exculpatory Provisions 46
10.4 Reliance by Administrative Agent 47
10.5 Notice of Default 47
10.6 Non-Reliance on Administrative Agent and Other Banks 47
10.7 Indemnification 48
10.8 Administrative Agent in Its Individual Capacity 48
10.9 Successor Administrative Agent 49
10.10 The Arranger Syndication Agent and Documentation Agent 49
SECTION 11. MISCELLANEOUS 49
11.1 Amendments and Waivers 49
11.2 Notices 51
11.3 No Waiver; Cumulative Remedies 52
11.4 Survival of Representations and Warranties 52
11.5 Payment of Expenses and Taxes 52
11.6 Successors and Assigns; Participations and Assignments 53
11.7 Adjustments; Set-off 56
11.8 Counterparts 56
11.9 Severability 57
11.10 Integration 57
11.11 GOVERNING LAW 57
11.12 Submission to Jurisdiction; Waivers 57
11.13 Acknowledgments 58
11.14 WAIVERS OF JURY TRIAL 58
CREDIT AGREEMENT, dated as of December 18, 2000, among:
(i) ARROW ELECTRONICS, INC., a New York corporation (the "Borrower");
(ii) the several banks and other financial institutions from time to time
parties to this Agreement (the "Banks");
(iii) XXXXXX XXXXXXX SENIOR FUNDING, INC., as syndication agent for the
Banks hereunder (in such capacity, the "Syndication Agent");
(iv) XXXXXX XXXXXXX SENIOR FUNDING, INC., as documentation agent for the
Banks hereunder (in such capacity, the "Documentation Agent"); and
v) XXXXXX XXXXXXX SENIOR FUNDING, INC., as administrative agent for the
Banks hereunder (in such capacity, the "Administrative Agent", and, together
with the Syndication Agent and the Documentation Agent, the "Agents").
W I T N E S S E T H :
WHEREAS, the Borrower has requested the Banks to make available a term
credit facility, and the Banks are willing to make such credit facility
available upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITION
1.1 Defined Terms. As used in this Agreement, the following terms shall have
the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect on such day plus ' of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Citibank as its prime rate in effect
at its principal office in New York City (the Prime Rate not being intended
to be the lowest rate of interest charged by Chase in connection with
extensions of credit to debtors); "Base CD Rate" shall mean the sum of (a)
the product of (i) the Three-Month Secondary CD Rate and (ii) a fraction, the
numerator of which is one and the denominator of which is one minus the C/D
Reserve Percentage and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for three-month
certificates of deposit reported as being in effect on such day (or, if such
day shall not be a Business Day, the next preceding Business Day) by the
Board through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board,
be published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day or
such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City
time, on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected by
it; and "Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York, or,
if such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate, or both, for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the ABR shall be determined without regard to clause
(b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate shall be effective as of the opening
of business on the effective day of such change in the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Committed Rate Loans the rate of interest applicable to which
is based upon the ABR.
"Adjusted Consolidated EBITDA": for any fiscal period, (a) the Consolidated
Net Income of the Borrower and its Subsidiaries for such period, plus (b) to
the extent deducted from earnings in determining Consolidated Net Income for
such period, the sum, in each case for such period, of income taxes, interest
expense, depreciation expense, amortization expense, including amortization
of any goodwill or other intangibles, minus (c) to the extent included in
determining Consolidated Net Income for such period, non-cash equity earnings
of unconsolidated Affiliates, plus (d) to the extent excluded in determining
Consolidated Net Income for such period, cash distributions received by the
Borrower from unconsolidated Affiliates, all as determined on a consolidated
basis in accordance with GAAP.
"Administrative Schedule": Schedule III to this Agreement, which contains
interest rate definitions and administrative information in respect of each
Type of Committed Rate Loan.
"Administrative Agent": as defined in the preamble hereto.
"Affected Bank": any Bank affected by the events described in subsection
4.4, 4.5 or 4.6, as the case may be, but only for the period during which
such Bank shall be affected by such events.
"Affiliate": as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person or (b) any Person who is a
director or officer of the Borrower or any of its Subsidiaries. For purposes
of this definition, "control" of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the securities having ordinary
voting power for the election of directors of such Person or (ii) direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": as defined in the preamble hereto.
"Agreement": this Credit Agreement, as amended, supplemented or otherwise
modified from time to time.
"Allocable Share": as to any Assenting Bank at any time, a fraction, the
numerator of which shall be the Commitment of such Assenting Bank then in
effect and the denominator of which shall be the aggregate of the Commitments
of all Assenting Banks then in effect.
"Applicable Margin": subject to the provisions of Section 2.8(e), (i) on any
date, during the period from the Closing Date until the three-month
anniversary of the Closing Date, the rate per annum determined based upon the
Rating in effect on such date by both S&P and Xxxxx'x set forth under the
relevant column heading below opposite such Rating:
Rating (S&P/Xxxxx'x)
Applicable Margin (in basis points) for Committed Rate Eurocurrency Loans
Greater than or equal to A-/A3 100.00
Greater than or equal to BBB+/Baa1 112.50
Greater than or equal to BBB/Baa2 125.00
Greater than or equal to BBB-/Baa3 137.50
and (ii) thereafter, on any date, the rate per annum determined based upon
the Rating in effect on such date by both S&P and Xxxxx'x set forth under the
relevant column heading below opposite such Rating:
Rating (S&P/Xxxxx'x)
Applicable Margin (in basis points) for Committed Rate Eurocurrency Loans
Greater than or equal to A-/A3 125.00
Greater than or equal to BBB+/Baa1 137.50
Greater than or equal to BBB/Baa2 150.00
Greater than or equal to BBB-/Baa3 162.50
; provided that, in the event that the Ratings of S&P and Xxxxx'x do not
coincide, the Applicable Margin set forth above opposite the higher of such
Ratings will apply, unless one of the Ratings is BBB-/Baa3 or lower, or if
there is no rating, in which case the Applicable Margin will be based on the
rating of BBB-/Baa3.
"Arranger": MSSF.
"Assenting Bank": as defined in subsection 4.7(a).
"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": each Assignment and Acceptance, substantially
in the form of Exhibit I, executed and delivered pursuant to subsection
11.6(c).
"Banks": as defined in the preamble hereto.
"Board": the Board of Governors of the Federal Reserve System or any
successor.
"Borrower": as defined in the preamble hereto.
"Business": as defined in subsection 5.19(b).
"Business Day": (a) a London Banking Day which is also a day other than a
Saturday or Sunday on which banks are open for general banking business in
New York City and (b) when such term is used for the purpose of determining
the date on which the Eurocurrency Rate is determined under this Agreement
for any Committed Rate Loan for any Interest Period therefor and for purposes
of determining the first and last day of any Interest Period, references in
this Agreement to Business Days shall be deemed to be references to Target
Operating Days.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the net
annual assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by Citibank to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for FDIC's insuring time
deposits made in Dollars at offices of Citibank in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for
a Depositary Institution (as defined in Regulation D of the Board) in respect
of new non-personal time deposits in Dollars having a maturity of 30 days or
more.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and
all equivalent ownership interests in a Person (other than a corporation) and
any and all warrants, options or rights to purchase any of the foregoing.
"Capitalization Documents": the collective reference to the Governing
Documents of the Borrower and each of its Subsidiaries, the certificates of
designation and other agreements governing the issuance of, or setting forth
the terms of, any Capital Stock (including, without limitation, the common
stock) issued or to be issued by the Borrower or any of its Subsidiaries and
the Rights Agreement.
"Change in Control": one or more of the following events:
a) less than a majority of the members of the Borrower's board of
directors shall be persons who either (i) were serving as directors on the
Closing Date or (ii) were nominated as directors and approved by the vote of
the majority of the directors who are directors referred to in clause (i)
above or this clause (ii); or
(b) the stockholders of the Borrower shall approve any plan or proposal
for the liquidation or dissolution of the Borrower; or
(c) a Person or group of Persons acting in concert (other than the
direct or indirect beneficial owners of the Capital Stock of the Borrower as
of the Closing Date) shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become
the direct or indirect beneficial owner (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended from time to time) of
securities of the Borrower representing 40% or more of the combined
voting power of the outstanding voting securities for the election of
directors or shall have the right to elect a majority of the board of
directors of the Borrower.
"Citibank": means Citibank, N.A.
"Closing Date": the date on which the conditions precedent set forth in
subsection 6.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Commitment": as to any Bank, the obligation of such Bank to make and/or
acquire participating interests in Committed Rate Loans hereunder in an
aggregate amount at any one time outstanding not to exceed the amount set
forth opposite such Bank's name on Schedule I, as such amount may be changed
from time to time in accordance with the provisions of this Agreement.
"Commitment Percentage": as to any Bank at any time, the percentage which
the principal amount such Bank's Committed Rate Loan then outstanding then
constitutes of the aggregate principal amount of the Committed Rate Loans
then outstanding.
"Committed Rate Loan": as defined in subsection 2.1; a Committed Rate Loan
bearing interest based upon the ABR shall be a "Committed Rate ABR Loan", and
a Committed Rate Loan bearing interest based upon a Eurocurrency Rate shall
be a "Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Borrower within the meaning of Section 4001
of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Consolidated Cash Interest Expense": for any period, (a) the amount which
would, in conformity with GAAP, be set forth opposite the caption "interest
expense" or any like caption on a consolidated income statement of the
Borrower and its Subsidiaries minus (b) the amount of non-cash interest
(including interest paid by the issuance of additional securities) included
in such amount.
"Consolidated Net Income": for any fiscal period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries after excluding all
unusual, extraordinary and non-recurring gains and after adding all unusual,
extraordinary and non-recurring losses, in all cases of the Borrower and its
Subsidiaries determined on a consolidated basis during the relevant period in
accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which would be
included under shareholders' equity on a consolidated balance sheet of the
Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Capitalization": at a particular date, the sum of (a)
Consolidated Net Worth plus (b) Consolidated Total Debt as at such date.
"Consolidated Total Debt": all Indebtedness of the Borrower and its
Subsidiaries (excluding Indebtedness of the Borrower owing to any of its
Subsidiaries or Indebtedness of any Subsidiary of the Borrower owing to the
Borrower or any other Subsidiary of the Borrower), as determined on a
consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Credit Documents": this Agreement and the Subsidiary Guarantees. "Default":
any of the events specified in Section 9, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": as to any Person, a Subsidiary of such Person
organized under the laws of a State of the United States or the District of
Columbia.
Environmental Laws": any and all applicable foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including, without limitation, common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"Eurocurrency Rate": the rate determined as the Eurocurrency Rate in the
manner set forth in the Administrative Schedule.
"Event of Default": any of the events specified in Section 9, provided that
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Existing Termination Date": as defined in Section 4.11.
"Financing Lease": any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"Funding Office": for each Type of Committed Rate Loan, the Funding Office
set forth in respect thereof in the Administrative Schedule.
"Funding Time": for each Type of Committed Rate Loan, the Funding Time set
forth in respect thereof in the Administrative Schedule.
"GAAP": generally accepted accounting principles in the United States of
America in effect from time to time.
"Governing Documents": as to any Person, the certificate or articles of
incorporation and by-laws or other organizational or governing documents of
such Person.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course
of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated
liability in respect thereof as determined by the Borrower in good faith.
"Hedging Agreements": (a) Interest Rate Agreements and (b) any swap,
futures, forward or option agreements or other agreements or arrangements
designed to limit or eliminate the risk and/or exposure of a Person to
fluctuations in currency exchange rates.
"Hedging Banks": any Bank or any of its subsidiaries or affiliates which
from time to time enter into Hedging Agreements with the Borrower or any of
its Subsidiaries.
"Indebtedness": of any Person at any date, without duplication, (a) the
principal amount of all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) the principal amount of any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) the portion of all obligations of such Person under
Financing Leases which must be capitalized in accordance with GAAP, (d) the
principal or stated amount of all obligations of such Person in respect of
letters of credit, banker's acceptances or similar obligations issued or
created for the account of such Person, (e) all liabilities arising under
Hedging Agreements of such Person, (f) the principal or stated amount of all
Guarantee Obligations of such Person (other than guarantees by the Borrower
or any Subsidiary in respect of current trade liabilities of the Borrower or
any Subsidiary incurred in the ordinary course of business and payable in
accordance with customary terms), and (g) the principal amount of all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each March,
June, September and December, (b) as to any Committed Rate Eurocurrency Loan
having an Interest Period of three months or less, the last day of such
Interest Period and (c) as to any Committed Rate Eurocurrency Loan having an
Interest Period longer than three months, each day which is three months
after the first day of such Interest Period and the last day of such Interest
Period.
"Interest Period": with respect to any Committed Rate Eurocurrency Loan: (i)
initially, the period commencing on the borrowing or conversion date, as the
case may be, with respect to such Committed Rate Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the Borrower in its
Notice of Borrowing or Notice of Conversion, as the case may be, given with
respect thereto; and (ii) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Committed Rate
Eurocurrency Loan and ending one, two or three months thereafter, as selected
by the Borrower by a Notice of Continuation with respect thereto; provided
that all of the foregoing provisions relating to Interest Periods are subject
to the following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection agreement, interest
rate future, interest rate option, interest rate swap, interest rate cap or
other interest rate hedge or arrangement under which the Borrower is a party
or a beneficiary.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"Loan Parties": the Borrower and each Subsidiary of the Borrower which is a
party to a Credit Document.
"London Banking Day": any day on which banks in London are open for general
banking business, including dealings in foreign currency and exchange.
"Material Adverse Effect": a material adverse effect on (a) the business,
operations, property, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole, (b) the ability of the
Borrower to perform its obligations under this Agreement or other Credit
Documents or (c) the validity or enforceability of this Agreement or any of
the other Credit Documents or the rights or remedies of the Administrative
Agent, or the Banks hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Xxxxx/s": Xxxxx/s Investors Service, Inc.
"MSSF": means Xxxxxx Xxxxxxx Senior Funding, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means, with respect to any sale, transfer or other
disposition relating to a securitization of assets or the incurrence or
issuance of any Indebtedness for borrowed money or the sale or issuance
through a private placement or public offering of any Capital Stock by any
Person, the aggregate amount of cash received from time to time (whether as
initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and commissions,
(b) the amount of taxes payable in connection with or as a result of such
transaction and (c) the amount of any Indebtedness secured by a Lien on such
asset that, by the terms of the agreement or instrument governing such
Indebtedness, is required to be repaid upon such disposition, in each case to
the extent, but only to the extent, that the amounts so deducted are, at the
time of receipt of such cash, actually paid to a Person that is not an
Affiliate of such Person or any Loan Party or any Affiliate of any Loan Party
and are properly attributable to such transaction or to the asset that is the
subject thereof; provided, however, that in the case of taxes that are
deductible under clause (b) above but for the fact that, at the time of
receipt of such cash, such taxes have not been actually paid or are not then
payable, such Loan Party or such Subsidiary may deduct an amount (the
"Reserved Amount") equal to the amount reserved in accordance with GAAP for
such Loan Party's or such Subsidiary's reasonable estimate of such taxes,
other than taxes for which such Loan Party or such Subsidiary is indemnified;
provided further, however, that, at the time such taxes are paid, an amount
equal to the amount, if any, by which the Reserved Amount for such taxes
exceeds the amount of such taxes actually paid shall constitute "Net Cash
Proceeds" of the type for which such taxes were reserved for all purposes
hereunder.
"1995 Credit Agreement": the Second Amended and Restated Credit Agreement,
dated as of August 16, 1995, as amended, among the Borrower, the other
borrowers named therein, The Chase Manhattan Bank, as administrative agent,
and others.
"1998 Private Placement Notes": the 6.45% Senior Secured Notes due 2003
issued by the Company in an aggregate principal amount equal to $250,000,000.
"Non-Excluded Taxes": as defined in subsection 5.6.
"Notice of Borrowing": with respect to a Committed Rate Loan of any Type, a
notice from the Borrower in respect of such Committed Rate Loan, containing
the information in respect of such Committed Rate Loan and delivered to the
Person, in the manner and by the time specified for a Notice of Borrowing and
such Type of Committed Rate Loan in the Administrative Schedule.
"Notice of Continuation": with respect to a Committed Rate Eurocurrency
Loan, a notice from the Borrower in respect of such Committed Rate Loan,
containing the information in respect of such Committed Rate Loan and
delivered to the Person, in the manner and by the time specified for a Notice
of Continuation in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate Loan which the
Borrower wishes to convert from a Committed Rate Eurocurrency Loan to an ABR
Loan, or from an ABR Loan to a Committed Rate Eurocurrency Loan, as the case
may be, a notice from the Borrower setting forth the amount of such Loan to
be converted, the date of such conversion and, in the case of conversions of
ABR Loans to Committed Rate Eurocurrency Loans, the length of the initial
Interest Period applicable thereto. Each Notice of Conversion shall be
delivered to the Administrative Agent at its address set forth in subsection
11.2 and shall be delivered before 12:00 Noon, New York City time, on the
Business Day of the requested conversion in the case of conversions to ABR
Loans, and before 12:00 Noon, New York City time, three Business Days before
the requested conversion in the case of conversions to Committed Rate
Eurocurrency Loans.
"Notice of Prepayment": with respect to prepayment of any Committed Rate
Committed Rate Loan of any Type, a notice from the Borrower in respect of
such Committed Rate Loan, containing the information in respect of such
prepayment and delivered to the Person, in the manner and by the time
specified for a Notice of Prepayment and such Type of Committed Rate Loan in
the Administrative Schedule.
"Objecting Bank": as defined in subsection 11.1(d).
"Participant": as defined in subsection 11.6(b).
"Payment Office": for each Type of Committed Rate Loan, the Payment Office
set forth in respect thereof in the Administrative Schedule.
"Payment Time": for each Type of Committed Rate Loan, the Payment Time set
forth in respect thereof in the Administrative Schedule.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust, joint
stock
Borrower, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Borrower or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Properties": as defined in subsection 5.19(a).
"Ratings": the actual or implied senior unsecured non-credit enhanced debt
ratings of the Borrower in effect from time to time by Moody's or S&P, as the
case may be, the bank debt rating of the Borrower in effect from time to time
by Moody's or the corporate credit rating of the Borrower in effect from time
to time by S&P.
"Register": as defined in subsection 11.6(d).
"Regulation U": Regulation U of the Board as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition that
such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Replacement Bank": a bank or financial institution that assumes certain
Commitments and obligations and purchases certain Loans and rights pursuant
to subsection 4.7(b) or 11.1(d).
"Reportable Event": any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty day notice period is waived
under subsections .13,.14, .16, .18, .19 or .20 of PBGC Reg. ' 2615.
"Required Banks": at any time, Banks holding an aggregate outstanding
principal amount of Committed Rate Loans in excess of 50% the aggregate
principal amount of all Committed Rate Loans then outstanding.
"Requirement of Law": as to any Person, the Governing Documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer": as to any Person, the chief executive officer, the
chairman of the board, the president, the chief financial officer, the chief
accounting officer, any executive or senior vice president or the treasurer
of such Person.
"Rights Agreement": the Rights Agreement, dated as of March 2, 1988, between
the Borrower and Chase, as successor by merger to Manufacturers Hanover Trust
Company, as rights agent, as amended, supplemented or otherwise modified from
time to time.
"S&P": Standard & Poor's Ratings Group.
"Schedule Amendment": each Schedule Amendment, substantially in the form of
Exhibit A, executed and delivered pursuant to subsection 12.1.
"Senior Bank Facilities": the 1995 Credit Agreement and the 2000 Credit
Agreement, including refinancings thereof.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Subsidiary Guarantee": each Subsidiary Guarantee, substantially in the form
of Exhibit C with such changes as shall be approved by the Administrative
Agent, to be executed and delivered from time to time in accordance with this
Agreement by any Domestic Subsidiary that accounts for more than 5% of Total
Assets at any date, in each case, as the same may be amended, supplemented or
otherwise modified from time to time.
"Subsidiary Guarantor": each Subsidiary of the Borrower that executes and
delivers a Subsidiary Guarantee in accordance with this Agreement.
"Target Operating Day": any day that is not (a) a Saturday or Sunday, (b)
Christmas Day or New Year's Day or (c) any other day on which the Trans-
European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the Administrative
Agent).
"Termination Date": March 19, 2001, as such date may be extended pursuant to
Section 4.11.
"Total Assets": at a particular date, the assets of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Tranche": the collective reference to Committed Rate Eurocurrency Loans the
then current Interest Periods with respect to all of which begin on the same
date and end on the same later date (whether or not such Committed Rate Loans
shall originally have been made on the same day).
"Transferee": as defined in subsection 11.6(f).
"2000 Credit Agreement": the Amended and Restated 364 Day Credit Agreement
dated as of March 26, 2000, as amended, among the Borrower, the other
borrowers named therein and The Chase Manhattan Bank, as administrative agent
and others.
"Type": in respect of any Committed Rate Loan, its character as a Committed
Rate ABR Loan or Committed Rate Eurocurrency Loan, as the case may be.
"Wyle": Wyle Electronics, a California corporation.
1.2 Other Definitional Provisions. Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Borrower and its
Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) The phrases "to the knowledge of the Borrower" and "of which any
Subsidiary is aware" and phrases of similar import when used in this
Agreement shall mean to the actual knowledge of a Responsible Officer of the
Borrower or any such Subsidiary, as the case may be.
1.3 Accounting Determinations. Unless otherwise specified herein, all
accounting determinations for purposes of calculating or determining
compliance with the terms found in subsection 1.1 or the standards and
covenants found in subsection 8.1 and otherwise to be made under this
Agreement shall be made in accordance with GAAP applied on a basis consistent
in all material respects with that used in preparing the financial statements
referred to in subsection 5.1. If GAAP shall change from the basis used in
preparing such financial statements, the certificates required to be
delivered pursuant to subsection 7.2 demonstrating compliance with the
covenants contained herein shall set forth calculations setting forth the
adjustments necessary to demonstrate how the Borrower is in compliance with
the financial covenants based upon GAAP as in effect on the Closing Date.
SECTION 2. THE COMMITTED RATE LOANS
2.1 Committed Rate Loans. Subject to the terms and conditions hereof,
each Bank severally agrees to make a single loan (a "Committed Rate Loan") to
the Borrower on the Closing Date in an amount not to exceed such Bank's
Commitment at such time. Amounts borrowed under this Section 2.01 and repaid
or prepaid may not be reborrowed.
2.2 Procedure for Committed Rate Loan Borrowing. The Borrower may
request the Banks to make Committed Rate Loans on the Closing Date by
delivering a Notice of Borrowing. Upon receipt of the Notice of Borrowing
from the Borrower, the Administrative Agent shall promptly notify each Bank
of receipt of the Notice of Borrowing and of such Bank's Commitment
Percentage of the Committed Rate Loans to be made pursuant thereto. Subject
to the terms and conditions hereof, each Bank will make its Commitment
Percentage of such borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office, and at or prior to the Funding
Time, in funds immediately available to the Administrative Agent. The
amounts made available by each Bank will then be made available to the
Borrower at the Funding Office, in like funds as received by the
Administrative Agent.
2.3 Repayment of Committed Rate Loans; Evidence of Debt. The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Bank on the Termination Date (or such earlier date on which
the Committed Rate Loans become due and payable pursuant to Section 9), the
then unpaid principal amount of each Committed Rate Loan made by such Bank to
the Borrower. The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Committed Rate Loans made to the Borrower from
time to time outstanding from the date hereof until payment in full thereof
at the rates per annum, and on the dates, set forth in subsection 2.8. (b)
Each Bank shall maintain in accordance with its usual practice an account or
accounts evidencing indebtedness of the Borrower to such Bank resulting from
each Committed Rate Loan of such Bank from time to time, including the
amounts of principal and interest payable and paid to such Bank from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 11.6(d), and a subaccount therein for each Bank, in which shall be
recorded (i) the amount of each Committed Rate Loan made hereunder and each
Interest Period (if any) applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Bank under a Committed Rate Loan and (iii) the amount of any sum
received by the Administrative Agent from the Borrower in respect of
Committed Rate Loans, and the amount of each Bank's share thereof.
(d) The entries made in the Register and the accounts of each Bank
maintained pursuant to subsection 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Bank or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Committed
Rate Loan made to the Borrower by such Bank in accordance with the terms of
this Agreement.
2.4 Termination or Reduction of Commitments. At the close of business on the
Closing Date, the Commitments shall be automatically and permanently reduced
to zero.
2.5 Prepayments.
(a) Optional. By giving a Notice of Prepayment, the Borrower may, at
any time and from time to time, prepay the Committed Rate Loans made to the
Borrower, in whole or in part, without premium or penalty (except as provided
in subsection 4.8). Upon receipt of any such notice the Administrative Agent
shall promptly notify each Bank thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection
4.8. Partial prepayments shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof.
(b) Mandatory. The Borrower shall, on the date of receipt of the Net
Cash Proceeds by the Borrower or any of its Subsidiaries from (i) the sale,
transfer or other disposition relating to the securitization of any assets of
the Borrower or any of its Subsidiaries, (ii) the issuance through a private
placement or public offering after the Closing Date by the Borrower or any of
its Subsidiaries of any Capital Stock or (iii) the incurrence or issuance
after the Closing Date by the Borrower or any of its Subsidiaries of any
Indebtedness for borrowed money, prepay an aggregate principal amount of the
Committed Rate Loans in an amount equal to the amount of such Net Cash
Proceeds; provided, however, that the Borrower shall only be required to make
such prepayments in respect of (a) any sale, transfer or disposition relating
to securitization of assets and (b) any refinancing through a senior bank
credit facility of Indebtedness under the 1995 Credit Agreement or the 2000
Credit Agreement occurring after the Closing Date to the extent the Net Cash
Proceeds therefrom exceed $1,500,000,000.
2.6 Conversion and Continuation Options. By giving a Notice of Conversion,
the Borrower may elect from time to time (i) to convert the Borrower's
Committed Rate Eurocurrency Loans to ABR Loans or (ii) to convert such
Borrower's ABR Loans to Committed Rate Eurocurrency Loans. Upon receipt of
any Notice of Conversion the Administrative Agent shall promptly notify each
Bank thereof. All or any part of Committed Rate Eurocurrency Loans or ABR
Loans may be converted as provided herein, provided that (i) no ABR Loan may
be converted into a Committed Rate Eurocurrency Loan when any Event of
Default has occurred and is continuing and the Administrative Agent has or
the Required Banks have determined that such a conversion is not appropriate
and (ii) no ABR Loan may be converted into a Committed Rate Eurocurrency Loan
after the date that is one month prior to the Termination Date.
(b) By giving a Notice of Continuation, the Borrower may continue any of
the Borrower's Committed Rate Eurocurrency Loans as Committed Rate
Eurocurrency Loans for additional Interest Periods.
(c) If the Borrower shall fail to timely give a Notice of Continuation
or a Notice of Conversion in respect of any of the Borrower's Committed Rate
Eurocurrency Loans with respect to which an Interest Period is expiring, the
Borrower shall be deemed to have given a Notice of Continuation for an
Interest Period of one month.
2.7 Minimum Amounts of Tranches. All conversions and continuations of
Committed Rate Loans and all selections of Interest Periods shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, the aggregate principal amount of the Committed Rate Loans
comprising each Tranche shall be not less than $2,000,000.
2.8 Interest Rates and Payment Dates for Committed Rate Loans. Each
Committed Rate Eurocurrency Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the
Eurocurrency Rate for such Interest Period plus the Applicable Margin on each
such day.
(b) Each Committed Rate ABR Loan shall bear interest at a rate per annum
equal to the ABR.
(c) If all or a portion of (i) the principal amount of any Committed
Rate Loan or (ii) any interest payable thereon shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2% or (y) in the
case of overdue interest, the rate described in paragraph (b) of this
subsection plus 2%, in each case from the date of such non-payment until such
amount is paid in full (as well after as before judgment).
(d) Interest on Committed Rate Loans shall be payable in arrears on each
Interest Payment Date; provided, that interest accruing pursuant to paragraph
(c) of this subsection shall be payable from time to time on demand.
(e) To the extent the Borrower refinances the Indebtedness under the
1995 Credit Agreement or the 2000 Credit Agreement and such refinancing
results in the applicable margin in respect of the eurocurrency rate loans
made thereunder to be more favorable to the Borrower than the Applicable
Margin under this Agreement, the Administrative Agent, on behalf of itself
and the Banks shall, within ten Business Days after notice of such change has
been given to it by the Borrower, agree to an amendment to this Agreement
incorporating such more favorable applicable margin.
2.9 Inability to Determine Interest Rate. If on or prior to the date on
which the Eurocurrency Rate is determined for any Interest Period in respect
of any Committed Rate Eurocurrency Loan:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that, by reason of circumstances
affecting the relevant market generally, adequate and reasonable means do not
exist for ascertaining the Eurocurrency Rate for such affected Interest
Period, or
(b) the Administrative Agent shall have received notice from Banks
having Commitments comprising at least 25% of the aggregate amount of the
Commitments that the Eurocurrency Rate determined or to be determined for
such affected Interest Period will not adequately and fairly reflect the cost
to such Banks (as conclusively certified by such Banks) of making or
maintaining their affected Committed Rate Loans during such affected Interest
Period, the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the Banks as soon as practicable thereafter. If
such notice is given (x) any Committed Rate Eurocurrency Loans requested to
be made on the first day of such affected Interest Period shall be made as
ABR Loans, (y) any Committed Rate Loans that were to have been converted on
the first day of such affected Interest Period from ABR Loans to Committed
Rate Eurocurrency Loans shall be continued as ABR Loans and (z) any Committed
Rate Eurocurrency Loans that were to have been continued as such shall be
converted, on the first day of such Interest Period, to ABR Loans. Until
such notice has been withdrawn by the Administrative Agent, no further
Committed Rate Eurocurrency Loans shall be made, converted to or continued as
such.
SECTION 3. [INTENTIONALLY OMITTED]
SECTION 4. CERTAIN PROVISIONS APPLICABLE TO THE COMMITTED RATE LOANS
4.1 Fees; Other Payments. The Borrower agrees to pay to the Administrative
Agent, for its own account and for the account of the Arranger, the fees in
the amounts and on the dates agreed to by such parties in writing prior to
the date of this Agreement.
4.2 Computation of Interest. Whenever it is calculated on the basis of the
Prime Rate, interest shall be calculated on the basis of a 365- (or 366-, as
the case may be) day year for the actual days elapsed; and, otherwise,
interest shall be calculated on the basis of a 360-day year for the actual
days elapsed. The Administrative Agent shall as soon as practicable notify
the Borrower and the Banks of each determination of a Eurocurrency Rate. Any
change in the ABR due to a change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate shall be effective as of the opening of business
on the effective day of such change in the Prime Rate, the Base CD Rate or
the Federal Funds Effective Rate, respectively. The Administrative Agent
shall as soon as practicable notify the Borrower and the Banks of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Borrower and the Banks in the absence of manifest error.
4.3 Pro Rata Treatment and Payments. Each payment by the Borrower shall be
made pro rata according to the respective Commitment Percentages of the
Banks. Each disbursement of Committed Rate Loans shall be made by the Banks
pro rata according to the respective Commitment Percentages of the Banks.
Each payment (including each prepayment) by the Borrower on account of
principal of and interest on any Committed Rate Loans shall be made pro rata
according to the respective principal amounts of the Committed Rate Loans of
the Borrower then due and owing to the Banks. All payments (including
prepayments) to be made by the Borrower hereunder, whether on account of
principal, interest, fees or otherwise, shall be made without set off or
counterclaim. All payments in respect of Committed Rate Loans shall be made
in immediately available funds at the Payment Office, and at or prior to the
Payment Time, for such Type of Committed Rate Loans, on the due date thereof.
The Administrative Agent shall distribute to the Banks any payments received
by the Administrative Agent promptly upon receipt in like funds as received.
If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in writing by
any Bank prior to the Closing Date in respect of Committed Rate Loans that
such Bank will not make the amount that would constitute its Commitment
Percentage of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Bank is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by
the required time on the Closing Date therefor, such Bank shall pay to the
Administrative Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal funds rate, as quoted by the
Administrative Agent, in each case for the period until such Bank makes such
amount immediately available to the Administrative Agent. A certificate of
the Administrative Agent submitted to any Bank with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error.
4.4 Illegality. Notwithstanding any other provision herein, if the adoption
of or any change in any Requirement of Law or in the interpretation thereof
by any Governmental Authority charged with the administration or
interpretation thereof shall make it unlawful for any Bank to make or
maintain Committed Rate Eurocurrency Loans to the Borrower, the commitment of
such Bank hereunder to make Committed Rate Eurocurrency Loans, continue
Committed Rate Eurocurrency Loans as such and convert Committed Rate Loans to
Eurocurrency Committed Rate Loans to the Borrower shall forthwith be canceled
to the extent necessary to remedy or prevent such illegality. Nothing in
this subsection 4.4 shall affect the obligation of the Banks to make and
maintain ABR Loans to the Borrower, notwithstanding that a Requirement of Law
may make it unlawful to make and maintain Committed Rate Eurocurrency Loans
to the Borrower.
4.5 Requirements of Law. If the adoption of or any change in any Requirement
of Law (other than the Certificate of Incorporation and By-Laws or other
organizational or governing documents of the Banks) or in the interpretation
or application thereof or compliance by any Bank with any request or
directive (whether or not having the force of law) from any central bank or
other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Bank or any corporation controlling such Bank
or from which such Bank obtains funding or credit to any tax of any kind
whatsoever with respect to this Agreement, or any Committed Rate Eurocurrency
Loan made by it, or change the basis of taxation of payments to such Bank or
such corporation in respect thereof (except for Non-Excluded Taxes covered by
subsection 4.6 (including taxes excluded under the first sentence of
subsection 4.6(a)) and changes in the rate of tax on the overall net income
of such Bank or such corporation);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank or any corporation controlling such Bank or from which
such Bank obtains funding or credit which is not otherwise included in the
determination of the Eurocurrency Rate hereunder; or
(iii) shall impose on such Bank or any corporation controlling such
Bank or from which such Bank obtains funding or credit any other condition;
and the result of any of the foregoing is to increase the cost to such Bank
or such corporation, by an amount which such Bank or such corporation deems
to be material, of making, converting into, continuing or maintaining
Committed Rate Eurocurrency Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Bank, within five Business Days after its demand, any
additional amounts necessary to compensate such Bank for such increased cost
or reduced amount receivable, together with interest on each such amount from
the date due until payment in full at a rate per annum equal to the ABR plus
2%. If any Bank becomes entitled to claim any additional amounts pursuant to
this subsection, it shall promptly notify the Borrower, through the
Administrative Agent, of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Bank, through the Administrative Agent, to
the Borrower shall be conclusive in the absence of manifest error. This
covenant shall survive the termination of this Agreement and the payment of
Committed Rate Loans and all other amounts payable hereunder.
(b) If any Bank shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation
or application thereof or compliance by such Bank or any corporation
controlling such Bank or from which such Bank obtains funding or credit with
any request or directive regarding capital adequacy (whether or not having
the force of law) from any Governmental Authority made subsequent to the date
hereof does or shall have the effect of reducing the rate of return on such
Bank's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Bank or such corporation could
have achieved but for such change or compliance (taking into consideration
such Bank's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Bank to be material, then from time to time,
after submission by such Bank to the Borrower (with a copy to the
Administrative Agent) of a written request therefor (which written request
shall be conclusive in the absence of manifest error), the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank
for such reduction.
(c) In addition to, and without duplication of, amounts which may become
payable from time to time pursuant to paragraphs (a) and (b) of this
subsection 4.5, the Borrower agrees to pay to each Bank which requests
compensation under this paragraph (c) by notice to the Borrower, on the last
day of each Interest Period with respect to any Committed Rate Eurocurrency
Loan made by such Bank to the Borrower, at any time when such Bank shall be
required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the Board (or, at any time when such Bank may be required by
the Board or by any other Governmental Authority, whether within the United
States or in another relevant jurisdiction, to maintain reserves against any
other category of liabilities which includes deposits by reference to which
the Eurocurrency Rate is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Bank which
includes any such Committed Rate Eurocurrency Loans), an additional amount
(determined by such Bank's calculation or, if an accurate calculation is
impracticable, reasonable estimate using such reasonable means of allocation
as such Bank shall determine) equal to the actual costs, if any, incurred by
such Bank during such Interest Period as a result of the applicability of the
foregoing reserves to such Committed Rate Eurocurrency Loans.
(d) A certificate of each Bank setting forth such amount or amounts as
shall be necessary to compensate such Bank as specified in paragraph (a), (b)
or (c) above, as the case may be, and setting forth in reasonable detail an
explanation of the basis of requesting such compensation in accordance with
paragraph (a) or (b) above, including calculations in detail comparable to
the detail set forth in certificates delivered to such Bank in similar
circumstances under comparable provisions of other comparable credit
agreements, shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay each Bank the amount shown as due on
any such certificate delivered to it within 10 days after its receipt of the
same.
(e) The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
4.6 Taxes. All payments made by the Borrower under this Agreement shall be
made free and clear of, and without deduction 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, excluding, in the case of the Administrative Agent and each Bank,
(i) net income taxes, capital taxes, doing business taxes and franchise taxes
imposed on the Administrative Agent or such Bank, as the case may be, as a
result of a present or former connection between the jurisdiction of the
government or taxing authority imposing such tax and the Administrative Agent
or such Bank (excluding a connection arising solely from the Administrative
Agent or such Bank having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement) or any political
subdivision or taxing authority thereof or therein, (ii) taxes required to be
withheld because of a failure to deliver any certificate described in this
subsection 4.6 for any reason and (iii) any and all withholding taxes payable
with respect to payments under this Agreement made by the Borrower other than
any such withholding taxes imposed as a result of any change in or amendment
to the laws of such jurisdiction affecting taxation (including any regulation
or ruling proposed or promulgated by a taxing authority thereof and any
treaty provisions) or any change in the official application, enforcement or
interpretation of such laws, regulations, rulings or treaties or any other
action taken by a taxing authority or a court of competent jurisdiction,
which change, amendment, application, enforcement, interpretation or action
becomes effective after the date hereof (all such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions and withholdings being hereinafter
called "Non-Excluded Taxes"). If any Non-Excluded Taxes are required to be
withheld from any amounts payable to the Administrative Agent or any Bank
hereunder, the amounts so payable to the Administrative Agent or such Bank
shall be increased to the extent necessary to yield to the Administrative
Agent or such Bank (after payment of all Non-Excluded Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified
in this Agreement. Whenever any Non-Excluded Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for its own account or for the account of such Bank, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any Non-
Excluded Taxes when due to the appropriate taxing authority or fails to remit
to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent
and such Bank for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or such Bank as a result of any
such failure. The agreements in this subsection 4.6(a) shall survive the
termination of this Agreement and the payment of the Committed Rate Loans and
all other amounts payable hereunder.
(b) (i) Each Bank (including each Assignee) that is not incorporated
under the laws of the United States of America or a state thereof agrees that
it will deliver to the Borrower and the Administrative Agent concurrently
with the delivery of this Agreement (or, in the case of any Assignee,
concurrently with the delivery of an Assignment and Acceptance) two duly
completed copies of (x) United States Internal Revenue Service Form W-8BEN or
W-8ECI or successor applicable form, as the case may be, and (y) an Internal
Revenue Service Form W-8BEN or W-9 or successor applicable form, as the case
may be. Each such Bank also agrees to deliver to the Borrower and the
Administrative Agent two further copies of the said Form W-8BEN or W-8ECI and
Form W-8BEN 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 after the occurrence of any event (including,
without limitation, a change in such Bank's lending office) requiring a
change in the most recent form previously delivered by it to the Borrower and
the Administrative Agent, and such extensions or renewals thereof as may
reasonably be requested by the Borrower or the Administrative Agent, unless
in any such case an event (including, without limitation, any change in
treaty, law or regulation) 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 Bank from duly completing and
delivering any such form with respect to it and such Bank so advises the
Borrower and the Administrative Agent. Such Bank shall certify (x) in the
case of a Form W-8BEN or W-8ECI, that it is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes and (y) in the case of a Form W-8BEN or W-9, that it is
entitled to an exemption from United States backup withholding tax.
(ii) Upon the written request of the Borrower, each Bank promptly
will provide to the Borrower and to the Administrative Agent, or file with
the relevant taxing authority (with a copy to the Administrative Agent) such
form, certification or similar documentation (each duly completed, accurate
and signed) as is required by the relevant jurisdiction in order to obtain an
exemption from, or reduced rate of Non-Excluded Taxes to which such Bank or
the Administrative Agent is entitled pursuant to an applicable tax treaty or
the law of the relevant jurisdiction; provided, however, such Bank will not
be required to (x) disclose information which in its reasonable judgment it
deems confidential or proprietary or (y) incur a cost if such cost would, in
its reasonable judgment, be substantial in comparison to the cost of the
Borrower under this subsection 4.6 of such Bank's failure to provide such
form, certification or similar documentation. Such Bank shall certify in the
case of any such form, certification or similar documentation so provided (to
the extent it may accurately and properly do so) that it is entitled to
receive payments under this Agreement without deduction or withholding, or at
a reduced rate of deduction or withholding of Non-Excluded Taxes.
(iii) A Bank shall be required to furnish a form under this paragraph
(b) only if it is entitled to claim an exemption from or a reduced rate of
withholding under applicable law. A Bank that is not entitled to claim an
exemption from or a reduced rate of withholding under applicable law,
promptly upon written request of the Borrower, shall inform the Borrower in
writing. (c) If any Bank is, in its sole opinion, able to apply for any tax
credit, tax deduction or other reduction in tax (a "Tax Benefit") by reason
of any increased amount paid by the Borrower under this subsection 4.6, such
Bank will use reasonable efforts to obtain such Tax Benefit and, upon receipt
thereof will pay to the Borrower such amount, not exceeding the increased
amount paid by the Borrower, as it considers, in its sole opinion, to be
equal to the net after-tax value to such Bank of the Tax Benefit or such part
thereof allocable to such withholding or deduction, having regard to all of
such Bank's dealings giving rise to similar credits and to the cost of
obtaining the same, less any and all expenses incurred by such Bank in
obtaining such Tax Benefit (including any and all professional fees incurred
therewith); provided, however, that (i) no Bank shall be obligated by this
subsection 4.6 to disclose to the Borrower any information regarding its tax
affairs or computations, (ii) nothing in this subsection 4.6 shall interfere
with the right of each Bank to arrange its tax affairs as it deems
appropriate and (iii) nothing in this subsection 4.6 shall impose an
obligation on a Bank to obtain any Tax Benefit if, in such Bank's sole
opinion, to do so would (x) impose undue hardships, burdens or expenditures
on such Bank or (y) increase such Bank's exposure to taxation by the
jurisdiction in question.
4.7 Borrower's Options upon Claims for Increased Costs and Taxes. In the
event that any Affected Bank shall decline to make Committed Rate
Eurocurrency Loans pursuant to subsection 4.4 or shall have notified the
Borrower that it is entitled to claim compensation pursuant to subsection 4.5
or 4.6, the Borrower may exercise any one or both of the following options:
(a) The Borrower may request one or more of the Banks which are not
Affected Banks to take over all (but not part) of any Affected Banks' then
outstanding Committed Rate Loans and to assume all (but not part) of any
Affected Bank's Commitments, if any. If one or more Banks shall so agree in
writing (collectively, the "Assenting Banks"; individually, an "Assenting
Bank") with respect to an Affected Bank, (i) the Commitments, if any, of each
Assenting Bank and the obligations of such Assenting Bank under this
Agreement shall be increased by its respective Allocable Share of the
Commitments, if any, and of the obligations of such Affected Bank under this
Agreement and (ii) each Assenting Bank shall make Committed Rate Loans to the
Borrower, according to such Assenting Bank's respective Allocable Share, in
an aggregate principal amount equal to the outstanding principal amount of
the Committed Rate Loans and of such Affected Bank, on a date mutually
acceptable to the Assenting Banks, such Affected Bank and the Borrower. The
proceeds of such Committed Rate Loans, together with funds of the Borrower,
shall be used to prepay the Committed Rate Loans, together with all interest
accrued thereon and all other amounts owing to such Affected Bank hereunder
(including any amounts payable pursuant to subsection 4.8 in connection with
such prepayment), and, upon such assumption by the Assenting Bank and
prepayment by the Borrower, such Affected Bank shall cease to be a "Bank" for
purposes of this Agreement and shall no longer have any obligations or rights
hereunder (other than any obligations or rights which according to this
Agreement shall survive the termination of this Agreement).
(b) The Borrower may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any such Affected Bank hereunder,
and to purchase the Committed Rate Loans of such Affected Bank and such
Affected Bank's rights hereunder and with respect thereto, without recourse
upon, or warranty by, or expense to, such Affected Bank (unless such Affected
Bank agrees otherwise), for a purchase price equal to the outstanding
principal amount of the Committed Rate Loans of such Affected Bank plus (i)
all interest accrued and unpaid thereon and all other amounts owing to such
Affected Bank hereunder and (ii) any amount which would be payable to such
Affected Bank pursuant to subsection 4.8, and upon such assumption and
purchase by the Replacement Bank, such Replacement Bank, if it is not already
a Bank, shall be deemed to be a "Bank" for purposes of this Agreement and
such Affected Bank shall cease to be a "Bank" for purposes of this Agreement
and shall no longer have any obligations or rights hereunder (other than any
obligations or rights which according to this Agreement shall survive the
termination of this Agreement).
4.8 Indemnity. The Borrower agrees to indemnify each Bank and to hold each
Bank harmless from any loss or expense (but excluding any lost profits) which
such Bank may sustain or incur as a consequence of (a) default by the
Borrower in payment when due of the principal amount of or interest on any
Committed Rate Eurocurrency Loan, (b) default by the Borrower in making a
borrowing of, conversion into or continuation of Committed Rate Eurocurrency
Loans after the Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (c) default by the Borrower in making
any prepayment of Committed Rate Eurocurrency Loans after the Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
(d) the making of a prepayment or conversion of Committed Rate Eurocurrency
Loans on a day which is not the last day of an Interest Period with respect
thereto including, without limitation, in each case, any such loss or expense
arising from the, reemployment or repayment of funds obtained by such Bank or
from fees payable to terminate the deposits from which such funds were
obtained. This covenant shall survive the termination of this Agreement and
the payment of the Committed Rate Loans and all other amounts payable
hereunder.
4.9 Determinations. In making the determinations contemplated by subsections
4.5, 4.6 and 4.8, each Bank may make such estimates, assumptions, allocations
and the like that such Bank in good faith determines to be appropriate. Upon
request of the Borrower, each Bank shall furnish to the Borrower, at any time
after demand for payment of an amount under subsection 4.5(a) or 4.8, a
certificate outlining in reasonable detail the computation of any amounts
owing. Any certificate furnished by a Bank shall be binding and conclusive
in the absence of manifest error.
4.10 Change of Lending Office. If an event occurs with respect to any Bank
that makes operable the provisions of subsection 4.4 or entitles such Bank to
make a claim under subsection 4.5 or 4.6, such Bank shall, if requested in
writing by the Borrower, to the extent not inconsistent with such Bank's
internal policies, use reasonable efforts to (a) designate another office or
offices for the making and maintaining of its Committed Rate Loans or (b)
obtain a different source of funds or credit, as the case may be, the
designation or obtaining of which will eliminate such operability or reduce
materially the amount such Bank is so entitled to claim, provided that such
designation or obtaining would not, in the sole discretion of such Bank,
result in such Bank incurring any costs unless the Borrower has agreed to
reimburse such Bank therefor.
4.11 Extension of Termination Date. The Company may request that the Banks
extend to June 18, 2001 the Termination Date then in effect (the "Existing
Termination Date") by delivering a request in writing for such extension to
the Administrative Agent (who shall forward such request to the Banks
promptly and in any event no later than 5 days after receipt thereof) not
more than 30 days, and not less than 15 days, prior to the Existing
Termination Date and each Bank agrees to grant such extension subject to the
following conditions precedent being met:
(a) No Default or Event of Default shall have occurred and be continuing
on such date or shall occur as a result of such extension.
(b) On March 19, 2001, the sum of (1) the total loans and commitments
under senior bank facilities in respect of which there are no scheduled
amortization payments prior to September 30, 2001 and (2) the proceeds from
asset securitizations occurring on and after the date hereof shall not be
less than $1,450,000,000 and, if none of the circumstances described in
clauses (x) and (y) of the following proviso shall have occurred, the
Administrative Agent shall be satisfied in its sole discretion with the
arrangements made by the Borrower in respect of the 1998 Private Placement
Notes; provided, however, that if (x) the Administrative Agent shall be
satisfied in its sole discretion that the Borrower is and as of April 1, 2001
will be in compliance with the financial and other covenants limiting the
Indebtedness of the Borrower under the 1998 Private Placement Notes or (y)
the 1998 Private Placement Notes have been (A) refinanced in full through (i)
a credit facility with no scheduled amortization payments prior to September
30, 2001, (ii) the proceeds of one or more asset securitizations occurring on
and after the date hereof or (iii) a combination of the transactions
described in clauses (i) and (ii), (B) amended to provide that the financial
and other covenants limiting the Indebtedness of the Borrower be no less
restrictive than those contained in this Agreement or (C) subject to a waiver
by the holders thereof of the Borrower's compliance with any financial or
other covenant limiting its Indebtedness for the period through September 30,
2001, the sum described in clauses (1) and (2) above shall not be less than
$1,200,000,000.
(c) Each of the representations and warranties made by the Borrower and
its Subsidiaries in or pursuant to the Credit Documents shall be true and
correct in all material respects on and as of such date as if made on and as
of such date except for representations and warranties expressly stated to
relate to a specific earlier date, in which case such representations and
warranties are true and correct as of such earlier date.
(d) The Borrower shall have paid all accrued fees to the Banks.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Administrative Agent and the Banks to enter into
this Agreement and to make the Committed Rate Loans, the Borrower hereby
represents and warrants to each Agent, the Administrative Agent and each Bank
that:
5.1 Financial Condition. The audited consolidated balance sheets of the
Borrower and its consolidated Subsidiaries as at December 31, 1999 and the
related consolidated statements of income and of cash flows for the fiscal
year ended on such date, reported on by Ernst & Young LLP, copies of which
have heretofore been furnished to each Bank or will be furnished to each Bank
that has not already received such copies, present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. The unaudited
consolidating balance sheet of the Borrower and its consolidated Subsidiaries
by principal operating group as at September 30, 2000, the related unaudited
consolidating statement of operations and retained earnings for the portion
of the fiscal year ended on September 30, 2000, certified by a Responsible
Officer, copies of which have heretofore been furnished to each Bank or will
be furnished to each Bank that has not already received such copies, present
fairly the consolidating financial condition of the Borrower and its
consolidated Subsidiaries by principal operating group as at such date, and
the consolidating results of their operations for the fiscal year then ended.
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). Neither
the Borrower nor any of its consolidated Subsidiaries had, at the date of the
most recent balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term
lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or referred
to in the notes thereto. During the period from September 30, 2000 to and
including the date hereof there has been no sale, transfer or other
disposition by the Borrower or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other
acquisition of any business or property (including any Capital Stock of any
other Person) material in relation to the consolidated financial condition of
the Borrower and its consolidated Subsidiaries at September 30, 2000 (except
as otherwise disclosed in writing to the Banks prior to the Closing Date and
as set forth on Schedule 5.1 hereto).
5.2 No Change. Since December 31, 1999 there has been no development or
event which has had or could reasonably be expected to have a Material
Adverse Effect.
5.3 Corporate Existence; Compliance with Law. Each of the Borrower and its
Subsidiaries (a) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, (b) has the corporate
or other power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or other entity and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the
conduct of its business requires such qualification, except where the failure
to be duly qualified or in good standing could not reasonably be expected to
have a Material Adverse Effect, and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. Each of the
Borrower and its Subsidiaries has the corporate or other power and authority,
and the legal right, to make, deliver and perform the Credit Documents to
which it is a party and to borrow hereunder and has taken all necessary
corporate action to authorize the borrowings on the terms and conditions of
this Agreement and the execution, delivery and performance of the Credit
Documents to which it is a party. No consent or authorization of, filing
with, notice to or other act by or in respect of, any Governmental Authority
or any other Person is required in connection with the borrowings hereunder
or with the execution, delivery, performance, validity or enforceability of
the Credit Documents. This Agreement has been, and each other Credit
Document to which the Borrower or any of its Subsidiaries is a party will be,
duly executed and delivered on behalf of the Borrower or such Subsidiary, as
the case may be. This Agreement constitutes, and each other Credit Document
to which it is a party when executed and delivered will constitute, a legal,
valid and binding obligation of the Borrower or any of its Subsidiaries party
thereto enforceable against the Borrower or such Subsidiary, as the case may
be, in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or at law).
5.5 No Legal Bar. The execution, delivery and performance of the Credit
Documents to which the Borrower or any of its Subsidiaries is a party, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of the Borrower or of any of its
Subsidiaries (except for violations of Contractual Obligations which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect) and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation,
except for the Liens expressly permitted by subsection 8.3.
5.6 No Material Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of
its Subsidiaries or against any of its or their respective properties or
revenues with respect to any of the Credit Documents or any of the
transactions contemplated hereby or thereby.
5.7 No Default. No Default or Event of Default has occurred and is
continuing.
5.8 Ownership of Property; Liens. Each of the Borrower and its Subsidiaries
has good record and marketable title in fee simple to, or a valid leasehold
interest in, all its real property, and good title to, or a valid leasehold
interest in, all its other property, and none of such property is subject to
any Lien except as permitted by subsection 8.3.
5.9 Intellectual Property. Each of the Borrower and its Subsidiaries owns,
or is licensed to use, all domestic and foreign trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct of
its business as currently conducted (the "Intellectual Property"). No claim
has been asserted and is pending or, to the knowledge of the Borrower, has
been threatened by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Borrower know of any valid basis for any
such claim. The use of such Intellectual Property by the Borrower and its
Subsidiaries does not infringe on the rights of any Person.
5.10 [INTENTIONALLY OMITTED]
5.11 Taxes. Each of the Borrower and its consolidated Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of
its property by any Governmental Authority (other than any unfiled tax
returns for taxes, and unpaid taxes, fees and other charges, (a) the amount
or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Borrower or its consolidated
Subsidiaries, as the case may be, or (b) which in each case, individually or
in the aggregate, would not cause the Borrower and its consolidated
Subsidiaries to have a liability in excess of $5,000,000; no notice of tax
Lien has been filed, and, to the knowledge of the Borrower, no claim is being
asserted by any taxing authority, with respect to any such tax, fee or other
charge except for claims the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
Borrower or its consolidated Subsidiaries, as the case may be, and claims for
amounts which, in the aggregate, do not exceed $5,000,000.
5.12 Federal Regulations. No part of the proceeds of any Committed Rate
Loans will be used for "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect or for any purpose which violates the provisions of the
regulations of such Board of Governors. If requested by any Bank or the
Administrative Agent, the Borrower will furnish to the Administrative Agent
and each Bank a statement to the foregoing effect in conformity with the
requirements of FR Form U-1 referred to in said Regulation U.
5.13 ERISA. Each Plan which is intended to be qualified under Section 401(a)
(or 403(a) as appropriate) of the Code and each related trust agreement,
annuity contract or other funding instrument which is intended to be tax-
exempt under Section 501(a) of the Code is so qualified and tax-exempt and
has been so qualified and tax-exempt during the period from its adoption to
date. No event has occurred in connection with which the Borrower or any
Commonly Controlled Entity or any Plan, directly or indirectly, could
reasonably be expected to be subject to any material liability under ERISA,
the Code or any other law, regulation or governmental order or under any
agreement, instrument, statute, rule of law or regulation pursuant to or
under which the Borrower or a Subsidiary has agreed to indemnify or is
required to indemnify any person against liability incurred under, or for a
violation or failure to satisfy the requirements of, any such statute,
regulation or order. No Reportable Event has occurred during the five-year
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of
all accrued benefits under each Single Employer Plan maintained by the
Borrower or any Commonly Controlled Entity or for which the Borrower or any
Commonly Controlled Entity has or could have any liability (based on those
assumptions used to fund the Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither the Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither the
Borrower nor any Commonly Controlled Entity could reasonably be expected to
become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the unfunded liability of the
Borrower and each Commonly Controlled Entity for benefits under all unfunded
retirement or severance plans, programs, policies or other arrangements
(including, without limitation, post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit
plans (as defined in Section 3(1) of ERISA)), whether or not funded does not,
in the aggregate, exceed $5,000,000 (excluding those arrangements set forth
on Schedule 5.13).
5.14 Investment Company Act; Other Regulations. Neither the Borrower nor any
Subsidiary of the Borrower is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended. Neither the Borrower nor any Subsidiary of
the Borrower is subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
5.15 Subsidiaries. On the Closing Date, the only Domestic Subsidiaries of
the Borrower, and the only material partnerships or joint ventures in which
the Borrower or any Domestic Subsidiary has an interest, are those set forth
on Schedule 5.15. On the Closing Date, the Borrower owns the percentage of
the issued and outstanding Capital Stock or other evidences of the ownership
of each Domestic Subsidiary, partnership or joint venture set forth on
Schedule 5.15 as set forth on such Schedule. On the Closing Date, except as
set forth on Schedule 5.15, no such Domestic Subsidiary, partnership or joint
venture has issued any securities convertible into shares of its Capital
Stock. The outstanding stock and securities (or other evidence of ownership)
of such domestic Subsidiaries, partnerships or joint ventures owned by the
Borrower and its Subsidiaries are owned by the Borrower and its Subsidiaries
free and clear of all Liens, warrants, options or rights of others of any
kind whatsoever except for Liens permitted by subsection 8.3.
5.16 Accuracy and Completeness of Information. No document furnished or
statement made in writing to the Banks by the Borrower in connection with the
negotiation, preparation or execution of this Agreement or any of the other
Credit Documents contains any untrue statement of a material fact, or omits
to state any such material fact necessary in order to make the statements
contained therein not misleading, in either case which has not been
corrected, supplemented or remedied by subsequent documents furnished or
statements made in writing to the Banks. All other written information,
reports and other papers and data with respect to the Borrower and its
Subsidiaries (other than financial statements), furnished to the Banks by the
Borrower, or on behalf of the Borrower, were (a) in the case of those not
prepared for delivery to the Banks, to the Borrower's knowledge, at the time
the same were so furnished, complete and correct in all material respects for
the purposes for which the same were prepared and (b) in the case of those
prepared for delivery to the Banks, to the Borrower's knowledge, complete and
correct in all material respects, or have been subsequently supplemented by
other information, reports or other papers or data, to the extent necessary
to give the Banks a true and accurate knowledge of the subject matter in all
material respects, it being understood that financial projections as to
future events are not to be viewed as facts and that actual results may
differ from projected results.
5.17 Purpose of Committed Rate Loans. The proceeds of the Committed Rate
Loans shall be used by the Borrower for working capital purposes in the
ordinary course of business and for general corporate purposes of the
Borrower and, to the extent permitted hereunder, its Subsidiaries.
5.18 Senior Indebtedness. The principal of and interest on the Committed
Rate Loans are and will continue to be within the definition of "Senior
Indebtedness" or any similar term under the Subordinated Debentures.
5.19 Environmental Matters. Except as set forth on Schedule 5.19 or insofar
as there is no reasonable likelihood of a Material Adverse Effect arising
from any combination of facts or circumstances inconsistent with any of the
following:
(a) The facilities and properties owned or operated by the Borrower or
any of its Subsidiaries (the "Properties") do not contain, and to the
knowledge of the Borrower or its Subsidiaries, have not previously contained,
any Materials of Environmental Concern in amounts or concentrations which (i)
constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any applicable Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance with all applicable Environmental Laws, and there is no
contamination at, under or to the knowledge of the Borrower about the
Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Borrower or any of its
Subsidiaries (the "Business") which could materially interfere with the
continued operation of the Properties.
(c) Neither the Borrower nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Borrower or any of its Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) To the knowledge of the Borrower or any of its Subsidiaries,
Materials of Environmental Concern have not been transported or disposed of
from the Properties in violation of, or in a manner or to a location which
could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected
to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened, under any Environmental Law to which the Borrower or any
Subsidiary is or will be named as a party with respect to the Properties or
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other analogous
administrative or judicial requirements outstanding under any Environmental
Law with respect to the Properties or the Business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to liability under
any applicable Environmental Laws.
SECTION 6. CONDITIONS PRECEDENT
The occurrence of the Closing Date, and the agreement of each Bank to make
the initial Committed Rate Loan requested to be made by it on the Closing
Date, shall be subject to the satisfaction, on or prior to the Closing Date,
of the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have received this
Agreement, executed and delivered by a duly authorized officer of the
Borrower, with a counterpart for each Bank.
(b) Corporate Proceedings of each Loan Party. The Administrative Agent
shall have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent,
of the Board of Directors of each Loan Party authorizing (i) the execution,
delivery and performance of each Credit Document to which it is a party and
(ii) in the case of the Borrower, the borrowings contemplated hereunder,
certified by the Secretary or an Assistant Secretary of the Borrower as of
the Closing Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded.
(c) Fees and Expenses. The Administrative Agent shall have received the
fees and expenses to be received on or prior to the Closing Date pursuant to
subsection 4.1(c).
(d) Legal Opinions. The Administrative Agent shall have received, with
a counterpart for each Bank, the following executed legal opinions:
(i) the executed legal opinion of Milbank, Tweed, Xxxxxx & XxXxxx
LLP, counsel to the Borrower and the Subsidiary Guarantors, substantially in
the form of Exhibit D, with such modifications therein as shall be reasonably
requested or approved by the Administrative Agent; and
(ii) the executed legal opinion of Xxxxxx X. Xxxxxxx, general counsel of the
Borrower, substantially in the form of Exhibit E, with such modifications
therein as shall be reasonably requested or approved by the Administrative
Agent. Each such legal opinion shall cover such other matters incident to
the transactions contemplated by this Agreement and the other Credit
Documents as the Administrative Agent may reasonably require.
(e) No Material Litigation. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened (including any
proposed statute, rule or regulation) which in the reasonable judgment of any
Bank could have a Material Adverse Effect.
(f) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents
shall be reasonably satisfactory in form and substance to the Administrative
Agent.
(g) Representations and Warranties. Each of the representations and
warranties made by the Borrower and its Subsidiaries in or pursuant to the
Credit Documents shall be true and correct in all material respects on and as
of such date as if made on and as of such date except for representations and
warranties expressly stated to relate to a specific earlier date, in which
case such representations and warranties are true and correct as of such
earlier date.
(h) No Default. No Default or Event of Default shall have occurred and
be continuing on such date after giving effect to the Committed Rate Loans
requested to be made on such date.
(i) Borrowing Certificate. The Administrative Agent shall have received
with a counterpart for each Bank, a certificate of the Borrower, dated as of
such date, substantially in the form of Exhibit B, with appropriate
insertions and attachments, satisfactory in form and substance to the
Administrative Agent, executed by the President, Executive Vice President or
any Vice President and the Secretary or any Assistant Secretary or any
Treasurer of the Borrower.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Committed Rate Loan remains
outstanding and unpaid or any other amount is owing to any Bank, any Agent or
the Administrative Agent hereunder, the Borrower shall and (except in the
case of delivery of financial information, reports and notices) shall cause
each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 120 days after the end
of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end
of such year and the related consolidated statements of operations and
shareholders equity and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Ernst & Young or
other independent certified public accountants of nationally recognized
standing reasonably acceptable to the Required Banks;
(b) as soon as available, but in any event within 120 days after the end
of each fiscal year of the Borrower, the unaudited consolidating balance
sheet of the Borrower and its consolidated Subsidiaries by principal
operating group as at the end of such year and the related unaudited
consolidating statements of operations of the Borrower and its consolidated
Subsidiaries by principal operating group for such year, setting forth in
each case in comparative form the figures for the previous year, certified
pursuant to subsection 7.2(b) by a Responsible Officer as fairly presenting
the consolidating financial condition and results of operations of the
Borrower and its consolidated Subsidiaries by principal operating group;
(c) as soon as available, but in any event within 60 days after the end
of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of operations and shareholders' equity and
of cash flows of the Borrower and its consolidated Subsidiaries for such
quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for such quarter
of the previous year, certified by a Responsible Officer as fairly presenting
in all material respects when considered in relation to the consolidated
financial statements of the Borrower and its consolidated Subsidiaries
(subject to normal year-end audit adjustments); provided that the Borrower
may in lieu of furnishing such unaudited consolidated balance sheet furnish
to each Bank its Form 10-Q filed with the Securities and Exchange Commission
or any successor or analogous Governmental Authority for the relevant
quarterly period; and
(d) as soon as available, but in any event within 60 days after the end
of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidating balance sheet of the Borrower and its
consolidated Subsidiaries by principal operating group as at the end of such
quarter and the related unaudited consolidating statements of operations of
the Borrower and its consolidated Subsidiaries by principal operating group
for such quarter and the portion of the fiscal year through the end of such
quarter, in the case of the unaudited consolidating balance sheet setting
forth in comparative form the figures for the previous year (but not the
corresponding figures for such quarter of the previous year) and in the case
of the statements of operations setting forth in comparative form the figures
for such quarter of the previous year, certified by a Responsible Officer as
fairly presenting the consolidating financial condition and results of
operations of the Borrower and its consolidated Subsidiaries by principal
operating group (subject to normal year-end audit adjustments); the financial
statements to be furnished pursuant to this subsection 7.1 shall fairly
present the consolidated (or consolidating by principal operating group, as
appropriate) financial position and results of operations of the Borrower and
its consolidated Subsidiaries in accordance with GAAP (subject, in the case
of subsections 7.1(c) and (d), to normal year-end audit adjustments and the
absence of complete footnotes) applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such
accountants or Responsible Officer, as the case may be, and disclosed
therein).
7.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial statements referred
to in subsection 7.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred
to in subsections 7.1(a) and 7.1(b), a certificate of a Responsible Officer
substantially in the form of Exhibit F;
(c) concurrently with the delivery of the financial statements referred
to in subsection 7.1(c), a certificate of a Responsible Officer (i) stating
that, to the best of such Responsible Officer's knowledge, the Borrower has
observed and performed all of its covenants and other agreements contained in
this Agreement and the other Credit Documents to which it is a party to be
observed or performed by it, (ii) that such Responsible Officer has obtained
no knowledge of any Default or Event of Default except as specified therein
and (iii) setting forth calculations supporting compliance with subsections
8.1(a), (b) and (c), 8.2 and 8.5;
(d) as soon as delivered, a copy of the letter, addressed to the
Borrower, of the certified public accountants who prepared the financial
statements referred to in subsection 7.1(a) for such fiscal year and
otherwise referred to as a "management letter";
(e) within five days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders
generally, and within five days after the same are filed, copies of all
financial statements and reports which the Borrower or any of its
Subsidiaries may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority;
(f) promptly, such additional documents, instruments, legal opinions or
financial and other information as the Administrative Agent or any Bank may
from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, including, without limitation, all
obligations in respect of taxes, except where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be, or where
the failure to pay, discharge or otherwise satisfy could not reasonably be
expected to have a Material Adverse Effect.
7.4 Conduct of Business and Maintenance of Existence. Continue to engage in
business of the same general type as now conducted by it and preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary
or desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 8.4; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property useful and
necessary in its business in good working order and condition, except where
the failure to do so could not reasonably be expected to have a Material
Adverse Effect; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against
at least such risks (but including in any event public liability, product
liability and business interruption) as are usually insured against in the
same general area by companies engaged in the same or a similar business; and
furnish to each Bank, upon written request, full information as to the
insurance carried.
7.6 Inspection of Property; Books and Records; Discussions. Keep proper
books of records and account in which the entries are, in all material
respects, full, true and correct in conformity with sound business practice
and all Requirements of Law shall be made of all dealings and transactions in
relation to its business and activities; and, upon reasonable notice under
the circumstances, permit representatives of the Administrative Agent to
visit and inspect any of its properties and examine and make abstracts from
any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with
officers and employees of the Borrower and its Subsidiaries and with its
independent certified public accountants.
7.7 Notices. Promptly, after the Borrower becomes aware thereof, give notice
to the Administrative Agent and each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
the Borrower or any of its Subsidiaries or (ii) litigation, investigation or
proceeding which may exist at any time between the Borrower or any of its
Subsidiaries and any Governmental Authority, which in either case, if not
cured or if adversely determined, as the case may be, could reasonably be
expected to have a Material Adverse Effect or cause a Default or an Event of
Default;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries (i) in which the amount involved is $5,000,000 or more and not
covered by insurance or (ii) in which injunctive or similar relief is sought
which could reasonably be expected to have a Material Adverse Effect;
(d) the following events: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Borrower or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal
from, or the terminating (other than a standard termination under Section
4041(b) of ERISA), Reorganization or Insolvency of, any Plan;
(e) any change, development or event involving a prospective change,
which has had or could reasonably be expected to have a Material Adverse
Effect; and Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take
with respect thereto.
7.8 Environmental Laws. Comply with, and take all reasonable efforts to
ensure compliance by all tenants and subtenants, if any, in all material
respects with, all applicable Environmental Laws and obtain and comply in all
material respects with and maintain, and undertake all reasonable efforts to
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings
could not reasonably be expected to have a Material Adverse Effect.
7.9 Subsidiary Guarantees. Subject to the provisions of Section 7.11 below,
in the event that any Domestic Subsidiary which is not a Subsidiary Guarantor
shall account for more than 5% of Total Assets at any date, take all actions
necessary to cause such Domestic Subsidiary to execute and deliver a
Subsidiary Guarantee, within 60 days of the occurrence of such event.
7.10 Terms of Refinancing Debt. To the extent the Borrower refinances the
Debt under the 1995 Credit Agreement or the 2000 Credit Agreement and such
refinancing contains any event of default or covenant that is materially more
favorable to the lenders and other financial institutions under such
refinancing credit agreement than the comparable covenant or event of default
hereunder (including, without limitation, any covenant or event of default
that is not included in this Agreement), the Borrower will (i) promptly
notify the Administrative Agent of such event by delivering a schedule
summarizing any such covenant or event of default and (ii) within ten
Business Days after such notice, agree with the Administrative Agent, for its
benefit and the benefit of the Banks, to an amendment to this Agreement
incorporating substantially similar covenant or event of default as those
detailed in the schedule referred to in (i) above.
7.11 Wyle Guarantee. To the extent Wyle has not been merged with the
Borrower by March 19, 2001 and the Termination Date has been extended
pursuant to Section 4.11, and Wyle accounts for more than 5% of Total Assets
at such date, the Borrower shall cause Wyle to deliver no later than March
19, 2001 a duly executed Subsidiary Guarantee to the Administrative Agent.
7.12 Wyle Undertaking. Prior to Xxxxx 00, 0000, Xxxx shall not hold any cash
or cash equivalent in excess of $15,000,000 at any time outstanding.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in effect,
any Committed Rate Loan remains outstanding and unpaid or any other amount is
owing to any Bank or the Administrative Agent hereunder:
8.1 Financial Condition Covenants. The Borrower shall not:
(a) Maintenance of Indebtedness. Permit Consolidated Total Debt at any
time to exceed an amount equal to 70% of Consolidated Total Capitalization.
(b) Maintenance of Net Worth. Permit Consolidated Net Worth at any time
to be less than an amount equal to the sum of $750,000,000 plus 40% of
cumulative Consolidated Net Income for the fiscal quarter commencing April 1,
1995 and for each fiscal quarter thereafter (without subtraction for any
fiscal quarter during which Consolidated Net Income is a negative number).
(c) Interest Coverage. Permit for any period of four consecutive fiscal
quarters at any time the ratio of Adjusted Consolidated EBITDA to
Consolidated Cash Interest Expense to be less than 3.0 to 1.0.
8.2 Limitation on Indebtedness of Domestic Subsidiaries. The Borrower shall
not permit any of its Domestic Subsidiaries to, and the Domestic Subsidiaries
shall not, directly or indirectly, create, incur, assume or suffer to exist
any Indebtedness, except (a) Indebtedness in an aggregate amount not to
exceed 10% of Consolidated Net Worth, (b) any Indebtedness of Domestic
Subsidiaries pursuant to any of the Credit Documents, (c) any Indebtedness of
the Domestic Subsidiaries pursuant to the Subsidiary Guarantees under (and as
defined in) the 1995 Credit Agreement and (d) any Indebtedness of the
Domestic Subsidiaries pursuant to the Subsidiary Guarantees under (and as
defined in) the 2000 Credit Agreement.
8.3 Limitation on Liens. The Borrower shall not, and shall not permit any of
its Domestic Subsidiaries to, directly or indirectly, create, incur, assume
or suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Borrower or its Domestic
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or such Domestic Subsidiary;
(f) Liens (not otherwise permitted hereunder) which secure obligations
not exceeding (as to the Borrower and all Domestic Subsidiaries) an amount
equal to 5% of Consolidated Net Worth at any time outstanding; and
(g) any Liens arising as a result of any securitization by the Borrower
of receivables which secure obligations not in excess of $1,000,000,000 in
the aggregate.
8.4 Limitation on Fundamental Changes. The Borrower (a) shall not, and shall
not permit any of its Domestic Subsidiaries to, directly or indirectly, enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all of
its property, business or assets and (b) shall not, and shall not permit any
of its Subsidiaries, to make any material change in its present method of
conducting business, except:
(i) any Subsidiary may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the continuing or surviving
corporation) or with or into any one or more wholly-owned Domestic
Subsidiaries; and
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any other wholly owned Domestic Subsidiary.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) (i) The Borrower shall fail to pay any principal of any Committed
Rate Loan owing by it when due (whether at the stated maturity, by
acceleration or otherwise) in accordance with the terms hereof; or (ii) the
Borrower shall fail to pay any interest on any Committed Rate Loan or any fee
or any other amount payable hereunder, within five days after any such
interest or other amount becomes due in accordance with the terms thereof
or hereof; or
(b) Any representation or warranty made or deemed made by the Borrower
or any Subsidiary herein or in any other Credit Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Credit Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Borrower or any Subsidiary shall default in the observance or
performance of any agreement contained in Section 8 or Section 7.11 and, with
respect to subsections 8.2 and 8.3, such default shall continue unremedied
for a period of 30 days;
or
(d) The Borrower or any Subsidiary shall default in the observance or
performance of any other agreement contained in this Agreement or any other
Credit Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30 days
after the Borrower has
knowledge thereof; or
(e) Any of the Credit Documents shall cease, for any reason, to be in
full force and effect, or the Borrower shall so assert in writing; or
(f) The subordination provisions applicable to any Subordinated
Indebtedness, for any reason, cease to be in full force and effect, or any
Person shall so assert to the Borrower in writing and the Borrower shall not
promptly contest such assertion; or
(g) The Borrower or any of its consolidated Subsidiaries shall (i)
default in any payment of principal of or interest of any Indebtedness (other
than the Committed Rate Loans) or in the payment of any Guarantee Obligation,
in either case with an outstanding principal amount in excess of $5,000,000
when due beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was created;
or (ii) default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of
such Guarantee Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable; or
(h) (i) The Borrower or any Subsidiary that accounts for more than 5% of
Total Assets at any date shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or the Borrower or any such
Subsidiary shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against the Borrower or any such Subsidiary
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
the Borrower or any such Subsidiary any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or
(i) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any
Lien in favor of the PBGC or a Plan shall arise on the assets of the Borrower
or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Banks,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV
of ERISA, (v) the Borrower or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Banks is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions,
if any, could reasonably be expected to subject the Borrower to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of the
Borrower; or
(j) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $5,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 60 days from the entry thereof; or
(k) Any Subsidiary Guarantee shall cease, for any reason, to be in full
force and effect or any Subsidiary Guarantor party thereto shall so assert;
or
(l) A Change in Control shall occur; then, and in any such event, (A) if
such event is an Event of Default specified in clause (i) or (ii) of
paragraph (h) above with respect to the Borrower, automatically the
Commitments shall immediately terminate and the Committed Rate Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement shall become immediately due and payable and (B) if such event
is any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Banks, the Administrative Agent
may, or upon the request of the Required Banks, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii)
with the consent of the Required Banks, the Administrative Agent may, or upon
the request of the Required Banks, the Administrative Agent shall, by notice
to the Borrower, declare the Committed Rate Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement to be due
and payable forthwith, whereupon the same shall immediately become due and
payable. Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly
waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER AND OTHER AGENTS
10.1 Appointment. Each Bank hereby irrevocably designates and appoints MSSF
as the Administrative Agent of such Bank under this Agreement and the other
Credit Documents, and each such Bank irrevocably authorizes MSSF, as the
Administrative Agent for such Bank, to take such action on its behalf under
the provisions of this Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (i) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement or any other Credit
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Credit Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or for any failure of the
Borrower to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit
Document, or to inspect the properties, books or records of the Borrower.
10.4 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrower), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Credit Document unless it shall first receive such advice or concurrence of
the Required Banks or all of the Banks, as may be required hereunder, as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected from liability to
the Banks in acting, or in refraining from acting, under this Agreement and
the other Credit Documents in accordance with a request of the Required Banks
or all of the Banks, as may be required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Banks and their respective successors and assigns.
10.5 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Banks. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks or all of the Banks, as may be
required hereunder; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable
in the best interests of the Banks.
10.6 Non-Reliance on Administrative Agent and Other Banks. Each Bank
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs
of the Borrower, shall be deemed to constitute any representation or warranty
by the Administrative Agent to any Bank. Each Bank represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to
make its Committed Rate Loans hereunder and enter into this Agreement and the
other Credit Documents to which it is or will be a party. Each Bank also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Credit Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
the Borrower and its Subsidiaries. Except for notices, reports and other
documents expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any
duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower and
its Subsidiaries which may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
10.7 Indemnification. The Banks agree to indemnify the Administrative Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according
to their respective Commitment Percentages in effect on the date on which
indemnification is sought under this subsection (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and
the Committed Rate Loans shall have been paid in full, ratably in accordance
with their Commitment Percentages immediately prior to such date), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Committed Rate Loans) be imposed on, incurred by
or asserted against the Administrative Agent or any in any way relating to or
arising out of this Agreement, any of the other Credit Documents or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's gross negligence or willful misconduct. The
agreements in this subsection shall survive the payment of the Committed Rate
Loans and all other amounts payable hereunder.
10.8 Administrative Agent in Its Individual Capacity. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower and any of its
Subsidiaries as though the Administrative Agent were not the Administrative
Agent hereunder and under the other Credit Documents. With respect to its
Committed Rate Loans made or renewed by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Credit
Documents as any Bank and may exercise the same as though it were not the
Administrative Agent, and the terms "Bank" and "Banks" shall include the
Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Banks; provided that any
such resignation shall not be effective until a successor agent has been
appointed and approved in accordance with this subsection 10.9, and such
successor agent has accepted its appointment. If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the other
Credit Documents, then the Required Banks shall appoint from among the Banks
a successor administrative agent for the Banks, which successor agent shall
be approved by the Borrower (which approval shall not be unreasonably
withheld), whereupon such successor administrative agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this
subsection shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Credit Documents.
10.10 The Arranger Syndication Agent and Documentation Agent. Each Bank
acknowledges that none of the Arranger, the Syndication Agent and the
Documentation Agent, in such respective capacity, shall have any duties or
responsibilities, or shall incur any liabilities, under this Agreement or the
other Credit Documents.
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Neither this Agreement nor any other Credit
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Banks may, or, with the written consent of the Required Banks, the
Administrative Agent may, from time to time, (i) enter into with the Loan
Parties party thereto written amendments, supplements or modifications to
this Agreement and the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Banks or of the Loan Parties hereunder or thereunder
or (ii) waive, on such terms and conditions as the Required Banks or the
Administrative Agent, as the case may be, may specify in such instrument, any
of the requirements of this Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i)
reduce the amount or extend the scheduled date of maturity of any Committed
Rate Loan or reduce the stated rate of any interest or fee payable hereunder
or extend the scheduled date of any payment thereof or increase the aggregate
amount or extend the expiration date of any Bank's Commitment, in each case
without the consent of each Bank directly affected thereby, or (ii) amend,
modify or waive any provision of this subsection or reduce the percentage
specified in the definition of Required Banks, or consent to the assignment
or transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Credit Documents or amend, modify or waive subsection
4.3(a) or 11.6(a), or release any Subsidiary from its Subsidiary Guarantee,
in each case without the written consent of all the Banks, or (iii) amend,
modify or waive any provision of Section 10 without the written consent of
the then Administrative Agent. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Banks and shall
be binding upon the Borrower, the Banks, the Agents, the Administrative Agent
and all future holders of the Committed Rate Loans. In the case of any
waiver, the Borrower, the Banks and the Administrative Agent shall be
restored to their former position and rights hereunder and under any other
Credit Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right
consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedule III may be amended as follows:
(i) Schedule III will be amended to change administrative
information contained therein (other than any interest rate definition,
Funding Time, Payment Time or notice time contained therein), upon execution
and delivery by the Borrower and the Administrative Agent of a Schedule
Amendment providing for such amendment.
(ii) Schedule III will be amended to conform any Funding Time,
Payment Time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the Borrower, the Required Banks
and the Administrative Agent of a Schedule Amendment providing for such
amendment.
(iii) Schedule III will be amended to change any interest rate
definition contained therein, upon execution and delivery by the Borrower,
all the Banks and the Administrative Agent of a Schedule Amendment providing
for such amendment.
(c) The Administrative Agent shall give prompt notice to each Bank of
any amendment effect pursuant to subsection 11.1(b).
(d) The Borrower may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any Bank (an "Objecting Bank")
that refuses to consent to an amendment, supplement or waiver that both
requires the consent of all the Banks in order to become effective and is
acceptable to one or more other Banks constituting the Required Banks, and to
purchase the outstanding Committed Rate Loans of such Objecting Bank and such
Objecting Bank's rights hereunder and with respect thereto, without recourse
upon, or warranty by, or expense to, such Objecting Bank (unless such
Objecting Bank agrees otherwise), for a purchase price equal to the
outstanding principal amount of the Committed Rate Loans of such Objecting
Bank plus (i) all interest accrued and unpaid thereon and all other amounts
owing to such Objecting Bank hereunder and (ii) any amount which would be
payable to such Objecting Bank pursuant to subsection 4.8 (assuming that all
Committed Rate Loans of such Objecting Bank were prepaid on the date of such
assumption), and upon such assumption and purchase by the Replacement Bank,
such Replacement Bank, if it is not already a Bank, shall be deemed to be a
"Bank" for purposes of this Agreement and such Objecting Bank shall cease to
be a "Bank" for purposes of this Agreement and shall no longer have any
obligations or rights hereunder (other than any obligations or rights which
according to this Agreement shall survive the termination of this Agreement).
11.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy),
and, unless otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered by hand, or five days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower, the Subsidiary
Guarantors and the Administrative Agent, and as set forth in Schedule I in
the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto and any future holders of
the Committed Rate Loans:
The Borrower:
Arrow Electronics, Inc.
00 Xxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent:
Xxxxxx Xxxxxxx Senior Funding, Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopy: (212)
Telephone: (000) 000-0000
The Subsidiary Guarantors:
c/o Arrow Electronics, Inc.
00 Xxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
; provided that any Notice of Borrowing, Notice of Continuation, Notice of
Conversion, Notice of Prepayment, or any notice pursuant to subsections 2.4
or 2.5 shall not be effective until received.
11.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Bank, any right,
remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
11.4 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Credit Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the other
Credit Documents and the making of the Committed Rate Loans hereunder.
11.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or
reimburse the Administrative Agent and the Arranger for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Credit Documents and any other documents
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby,
including, without limitation, the fees and disbursements of counsel to the
Administrative Agent and the Arranger, (b) to pay or reimburse each Bank and
the Administrative Agent for all its reasonable costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents upon the
occurrence of an Event of Default, including, without limitation, the fees
and disbursements of counsel to the Administrative Agent and to the several
Banks, and (c) to pay, indemnify, and hold each Bank, each Agent, the
Arranger and the Administrative Agent harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting
from any delay in paying, stamp, excise and other taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any
waiver or consent under or in respect of, this Agreement, the other Credit
Documents and any such other documents, and (d) to pay, indemnify, and hold
each Bank, each Agent, the Arranger and the Administrative Agent (and their
respective directors, officers, employees and agents) (collectively, the
"indemnified person") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Credit Documents and any such
other documents, including, without limitation, any of the foregoing relating
to the use of proceeds of the Committed Rate Loans or the violation of,
noncompliance with or liability under, any Environmental Law applicable to
the operations of the Borrower, any of its Subsidiaries or any of the
Properties (it being understood that costs and expenses incurred in
connection with the enforcement or preservation of rights under this
Agreement and the other Credit Documents shall be paid or reimbursed in
accordance with clause (b) above rather than this clause (d)) (all the
foregoing in this clause (d), collectively, the "indemnified liabilities"),
provided, that the Borrower shall have no obligation hereunder to any
indemnified person with respect to indemnified liabilities arising from (i)
the gross negligence or willful misconduct of such indemnified person or (ii)
legal proceedings commenced against the Administrative Agent or any Bank by
any security holder or creditor thereof arising out of and based upon rights
afforded any such security holder or creditor solely in its capacity as such.
Any payments required to be made by the Borrower under this subsection 11.5
shall be made within 30 days of the demand therefor. The agreements in this
subsection shall survive repayment of the Committed Rate Loans and all other
amounts payable hereunder.
11.6 Successors and Assigns; Participations and Assignments. This Agreement
shall be binding upon and inure to the benefit of the Borrower, the Banks,
the Administrative Agent, all future holders of the Committed Rate Loans and
their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial lending
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in any
Loan owing to such Bank, any Commitment of such Bank or any other interest of
such Bank hereunder and under the other Credit Documents. In the event of
any such sale by a Bank of a participating interest to a Participant, such
Bank's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Bank shall remain solely responsible
for the performance thereof, such Bank shall remain the holder of any such
Loan for all purposes under this Agreement and the other Credit Documents,
and the Borrower and the Administrative Agent shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and the other Credit Documents. The
Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Banks the
proceeds thereof as provided in subsection 11.7(a) as fully as if it were a
Bank hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 4.5, 4.6 or 4.8 with respect to its
participation in the Commitments and the Committed Rate Loans outstanding
from time to time as if it was a Bank; provided that, in the case of
subsection 4.6, such Participant shall have complied with the requirements of
said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Bank would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Bank to such Participant
had no such transfer occurred. Each participating interest under this
Agreement sold by a Bank to a Participant after the Closing Date shall be
under terms providing that such Participant's rights to consent or withhold
consent in respect of actions by such selling Bank under this Agreement shall
be limited to such actions that, pursuant to subsection 12.1, require the
consent of all the Banks. Each Bank selling or granting a participation
shall indemnify the Borrower and the Administrative Agent for any taxes and
liabilities that they may sustain as a result of such Bank's failure to
withhold and pay any taxes applicable to payments by such Bank to its
participant in respect of such participation.
(c) Any Bank may, in the ordinary course of its commercial lending
business and in accordance with applicable law, at any time and from time to
time assign to any Bank or any affiliate thereof or, with the consent of the
Administrative Agent and the Borrower (which shall not be unreasonably
withheld and provided that the consent of the Borrower shall not be required
for such assignment if a Default or Event of Default pursuant to subsection
9(a) or 9(h) has occurred and is continuing at the time of such assignment),
to an additional bank or financial institutions (an "Assignee") all or any
part of its rights and obligations under this Agreement and the Committed
Rate Loans pursuant to an Assignment and Acceptance, executed by such
Assignee, such assigning Bank (and, in the case of an Assignee that is not
then a Bank or an affiliate thereof, by the Administrative Agent and the
Borrower) and delivered to the Administrative Agent for its acceptance and
recording in the Register. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have
the rights and obligations of a Bank hereunder with a Commitment as set forth
therein, and (y) the assigning Bank thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all
or the remaining portion of an assigning Bank's rights and obligations under
this Agreement, such assigning Bank shall cease to be a party hereto).
Notwithstanding anything herein to the contrary, no Assignee shall be
entitled to receive any greater amount pursuant to subsections 4.5, 4.6 or
4.8 than the transferor Bank would have been entitled to receive in respect
of the amount of the Commitment transferred by such transferor Bank to such
Assignee had no such transfer occurred, unless following the date of such
assignment, a change in any applicable Requirement of Law or any
interpretation thereof shall have occurred which entitles such Assignee to
claim additional amounts pursuant to such subsections.
(d) The Administrative Agent shall maintain at its address referred to
in subsection 11.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Banks and the Commitment of, and principal amount of the
Committed Rate Loans owing hereunder to, each Bank from time to time. The
entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Banks may treat
each Person whose name is recorded in the Register as the owner of the Loan
recorded therein for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Bank at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an Assignee (and, in the case of an Assignee that is not
then a Bank or an affiliate thereof, by the Administrative Agent) together
with payment to the Administrative Agent of a registration and processing fee
of $3,500, the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto
record the information contained therein in the Register and give notice of
such acceptance and recordation to the Banks and the Borrower.
(f) The Borrower authorizes each Bank to disclose to any Participant or
Assignee (each, a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Borrower and
its Affiliates which has been delivered to such Bank by or on behalf of the
Borrower pursuant to this Agreement or which has been delivered to such Bank
by or on behalf of the Borrower in connection with such Bank's credit
evaluation of the Borrower and its Affiliates prior to becoming a party to
this Agreement so long as each such prospective Transferee shall execute a
confidentiality agreement containing provisions substantially similar to the
provisions contained in the next succeeding sentences of this paragraph (f).
The Administrative Agent and each Bank shall hold nonpublic information
obtained pursuant to the requirements of this Agreement other than
information (i) that is, or generally becomes, available to the public, (ii)
that was or becomes available to the Administrative Agent or any Bank on a
nonconfidential basis or (iii) that becomes available to the Administrative
Agent or any Bank from a Person or other source that is not, to the best
knowledge of the Administrative Agent or such Bank, as the case may be,
otherwise bound by a confidentiality obligation to the Borrower, in
accordance with its customary procedures for treatment of confidential
information and in accordance with safe and sound banking practices and in
any event, may make disclosure reasonably required by any Governmental
Authority or representative thereof pursuant to subpoena or other legal
process or as otherwise required by law, order or regulation. Unless
specifically prohibited by applicable law, regulation, rule or court order,
the Administrative Agent and each Bank shall notify the Borrower of any
request by any Governmental Authority or representative thereof (other than
any such request in connection with an examination of the financial condition
of the Administrative Agent or such Bank by such Governmental Authority) for
disclosure of such information by the Administrative Agent or such Bank so
that any of them may seek an appropriate protective order. Except as may be
required by an order of a court of competent jurisdiction and to the extent
set forth therein, neither the Administrative Agent nor any Bank shall be
obligated or required to return any materials furnished by the Borrower.
Nothing in this paragraph (f) shall prohibit the Administrative Agent or any
Bank from disclosing nonpublic information to its examiners, regulators and
professional advisors.
(g) Nothing herein shall prohibit any Bank from pledging or assigning
any Loan to any Federal Reserve Bank in accordance with applicable law or
require any Bank to obtain the consent of any Loan Party in order to pledge
or assign any Loan to any Federal Reserve Bank in accordance with applicable
law.
11.7 Adjustments; Set-off. If any Bank (a "benefited Bank") shall at any
time receive any payment of all or part of its Committed Rate Loans then due
and owing to it, or interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 9(h), or otherwise), in a
greater proportion than any such payment to or collateral received by any
other Bank, if any, in respect of such other Bank's Committed Rate Loans then
due and owing to it, or interest thereon, such benefited Bank shall purchase
for cash from the other Banks a participating interest in such portion of
each such other Bank's Committed Rate Loans, or shall provide such other
Banks with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefited Bank to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Banks;
provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefited Bank, such purchase
shall be rescinded, and the purchase price and benefits returned, to the
extent of such recovery, but without interest. The Borrower agrees that each
Bank so purchasing a portion of another Bank's Loan may exercise all rights
of payment (including, without limitation, rights of set-off) with respect to
such portion as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by
law, each Bank shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder or under this Agreement or the other Credit Documents
(whether at the stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Bank or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Bank agrees promptly to notify
the Borrower and the Administrative Agent after any such set-off and
application made by such Bank, provided that the failure to give such notice
shall not affect the validity of such set-off and application.
11.8 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.
11.9 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10 Integration. This Agreement and the other Credit Documents represent
the agreement of the Borrower, the Administrative Agent and the Banks with
respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Bank relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.
11.11 GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE OTHER
CREDIT DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12 Submission to Jurisdiction; Waivers. The Borrower hereby irrevocably
and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to which
it is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(iii) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in subsection 11.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to
xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this subsection any special, exemplary, punitive or consequential damages.
11.13 Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) none of the Administrative Agent or any Bank has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Credit Documents, and the
relationship between the Administrative Agent and the Banks, on one hand, and
the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Banks or among the Borrower and the Banks.
11.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE
BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
ARROW ELECTRONICS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC., as Administrative Agent, Syndication
Agent, Documentation Agent and as a Bank
By:
Name:
Title:
