EXHIBIT (10)
$2,000,000,000
CREDIT AGREEMENT
dated as of
July 23, 1997
among
Mallinckrodt Inc.,
The Lenders Listed Herein,
Xxxxxx Guaranty Trust Company of New York,
as Administrative Agent,
Xxxxxxx Sachs Credit Partners L.P.,
as Syndication Agent,
and
Citibank, N.A.,
as Documentation Agent
------------------------------
X.X. Xxxxxx Securities Inc., Xxxxxxx Sachs Credit Partners L.P.
and Citicorp Securities, Inc.,
Co-Arrangers
TABLE OF CONTENTS
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ARTICLE 1
Definitions
Section 1.01. Definitions........................................... 1
Section 1.02. Accounting Terms and Determinations................... 19
Section 1.03. Classes and Types of Loans and Borrowings............. 19
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend................................... 20
Section 2.02. Notice of Committed Borrowing......................... 20
Section 2.03. Money Market Borrowings............................... 21
Section 2.04. Notice to the Lenders; Funding of Loans............... 25
Section 2.05. Notes................................................. 26
Section 2.06. Maturity of Loans..................................... 26
Section 2.07. Interest Rates........................................ 27
Section 2.08. Facility Fees......................................... 30
Section 2.09. Optional Termination or Reduction of Commitments...... 30
Section 2.10. Method of Electing Interest Rates..................... 30
Section 2.11. Mandatory Reduction and Termination of Commitments;
Mandatory Prepayments............................... 32
Section 2.12. Optional Prepayments.................................. 34
Section 2.13. General Provisions as to Payments..................... 34
Section 2.14. Funding Losses........................................ 35
Section 2.15. Computation of Interest and Fees...................... 35
Section 2.16. Regulation D Compensation............................. 35
ARTICLE 3
Conditions
Section 3.01. Closing............................................... 36
Section 3.02. Borrowings............................................ 37
ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence................................... 38
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Section 4.02. Financial Condition................................... 39
Section 4.03. Litigation............................................ 39
Section 4.04. No Breach............................................. 40
Section 4.05. Action................................................ 40
Section 4.06. Approvals............................................. 40
Section 4.07. ERISA................................................. 40
Section 4.08. Taxes................................................. 40
Section 4.09. Investment Company Act................................ 41
Section 4.10. Public Utility Holding Company Act.................... 41
Section 4.11. True and Complete Disclosure.......................... 41
Section 4.12. Environmental Matters................................. 41
ARTICLE 5
Covenants
Section 5.01. Financial Statements, Etc............................. 42
Section 5.02. Litigation............................................ 45
Section 5.03. Existence, Etc........................................ 45
Section 5.04. Insurance............................................. 46
Section 5.05. Limitation on Liens................................... 46
Section 5.06. Mergers and Sales of Assets........................... 48
Section 5.07. Change in Nature of Business.......................... 48
Section 5.08. Financial Covenants................................... 49
Section 5.09. Indebtedness of Subsidiaries.......................... 49
Section 5.10. Transactions with Affiliates.......................... 49
Section 5.11. Use of Proceeds....................................... 49
Section 5.12. Environmental Laws.................................... 49
Section 5.13. Most Favored Lender................................... 50
ARTICLE 6
Defaults
Section 6.01. Events of Default..................................... 51
Section 6.02. Notice of Default..................................... 53
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization......................... 54
ii
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Section 7.02. Agent and Affiliates.................................. 54
Section 7.03. Action by Agent....................................... 54
Section 7.04. Consultation with Experts............................. 54
Section 7.05. Liability of Agent.................................... 54
Section 7.06. Indemnification....................................... 55
Section 7.07. Credit Decision....................................... 55
Section 7.08. Successor Administrative Agent........................ 55
Section 7.09. Documentation Agent and Syndication Agent............. 56
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or
Unfair.............................................. 56
Section 8.02. Illegality............................................ 57
Section 8.03. Increased Cost and Reduced Return..................... 57
Section 8.04. Taxes................................................. 59
Section 8.05. Base Rate Loans Substituted for Affected Fixed
Rate Loans.......................................... 61
Section 8.06. Substitution of Lender................................ 61
ARTICLE 9
Miscellaneous
Section 9.01. Notices............................................... 62
Section 9.02. No Waivers............................................ 62
Section 9.03. Expenses; Indemnification............................. 62
Section 9.04. Sharing of Set-offs................................... 63
Section 9.05. Amendments and Waivers................................ 63
Section 9.06. Successors and Assigns................................ 64
Section 9.07. Collateral............................................ 66
Section 9.08. Governing Law; Submission to Jurisdiction............. 66
Section 9.09. Counterparts; Integration; Effectiveness.............. 66
Section 9.10. WAIVER OF JURY TRIAL.................................. 66
Section 9.11. Confidentiality....................................... 67
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PRICING SCHEDULE
COMMITMENT SCHEDULE
EXHIBIT A - Note
EXHIBIT B - Money Market Quote Request
EXHIBIT C - Invitation for Money Market Quotes
EXHIBIT D - Money Market Quote
EXHIBIT E - Opinion of Counsel for the Borrower
EXHIBIT F - Opinion of Special Counsel for the Agents
EXHIBIT G - Assignment and Assumption Agreement
AGREEMENT dated as of July 23, 1997 among MALLINCKRODT INC., the BANKS
party hereto from time to time, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Administrative Agent, XXXXXXX SACHS CREDIT PARTNERS L.P., as
Syndication Agent, and CITIBANK, N.A., as Documentation Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"ABSOLUTE RATE AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Absolute Rates pursuant to Section 2.03.
"ACQUISITION" means the acquisition by the Borrower of Target as
contemplated by the Offer to Purchase and the Merger Agreement.
"ADJUSTED CD RATE" has the meaning set forth in Section 2.07(b).
"ADJUSTED CONSOLIDATED EBITDA" means, for any fiscal period, Consolidated
EBITDA for such period, adjusted to exclude therefrom Excluded Items.
"ADJUSTED CONSOLIDATED NET WORTH" means, for any fiscal period,
Consolidated Net Worth for such period, adjusted to exclude therefrom Excluded
Items (after adjustment for related tax effects).
"ADMINISTRATIVE AGENT" means Xxxxxx Guaranty Trust Company of New York, in
its capacity as administrative agent for the Lenders hereunder, and its
successors in such capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Lender.
"AFFILIATE" means any Person that directly or indirectly controls, or is
under common control with, or is controlled by, the Borrower and, if such Person
is an individual, any member of the immediate family (including parents, spouse,
children and siblings) of such individual and any trust whose principal
beneficiary is such individual or one or more members of such immediate family
and any Person who is controlled by any such member or trust. As used in this
definition, "CONTROL" (including, with its correlative meanings, "CONTROLLED BY"
and "UNDER COMMON CONTROL WITH") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise), provided that, in any event, any Person that owns
directly or indirectly securities having 15% or more of the voting power for the
election of directors or other governing body of a corporation or 15% or more of
the partnership or other ownership interests of any other Person (other than as
a limited partner of such other Person) will be deemed to control such
corporation or other Person. Notwithstanding the foregoing, (a) no individual
shall be an Affiliate solely by reason of his or her being a director, officer
or employee of the Borrower or any of its Subsidiaries and (b) none of the
Subsidiaries of the Borrower shall be Affiliates.
"AGENT" means each of the Administrative Agent, the Syndication Agent and
the Documentation Agent.
"APPLICABLE LENDING OFFICE" means, with respect to any Lender, (i) in the
case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of its
Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of its
Money Market Loans, its Money Market Lending Office.
"ASSESSMENT RATE" has the meaning set forth in Section 2.07(b).
"ASSET SALE" means any sale or other disposition (including any such
transaction effected by way of merger or consolidation) by the Borrower or any
of its Subsidiaries of any asset (including without limitation any capital stock
held by the Borrower or such Subsidiary), including without limitation any sale-
leaseback transaction, whether or not involving a capital lease, but excluding
(i) dispositions to the Borrower or a Subsidiary of the Borrower, (ii) any sale,
transfer or other disposition of inventory or obsolete equipment or property in
the ordinary course of business, (iii) any sale, transfer or other disposition
of cash, cash equivalents and short term investments in the ordinary course of
business and (iv) any sale, transfer or other disposition of any "margin stock"
(within the meaning of the Margin Regulations) for fair value.
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"ASSIGNEE" has the meaning set forth in Section 9.06(c).
"BANKRUPTCY CODE" means the United States Bankruptcy Code of 1978, as
amended from time to time.
"BASE RATE" means, for any day, a rate per annum equal to the higher of (i)
the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the Federal Funds
Rate for such day.
"BASE RATE LOAN" means (i) a Committed Loan which bears interest at the
Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Article 8 or (ii) an overdue amount
which was a Base Rate Loan immediately before it became overdue.
"BORROWER" means Mallinckrodt Inc., a New York corporation, and its
successors.
"BORROWING" has the meaning set forth in Section 1.03.
"CAPITAL LEASE OBLIGATIONS" means, for any Person, all obligations of such
Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP (including Statement of Financial Accounting Standards No. 13
of the Financial Accounting Standards Board), and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP (including such Statement No. 13).
"CD BASE RATE" has the meaning set forth in Section 2.07(b).
"CD LOAN" means (i) a Committed Loan which bears interest at a CD Rate
pursuant to the applicable Notice of Committed Borrowing or Notice of Interest
Rate Election or (ii) an overdue amount which was a CD Loan immediately before
it became overdue.
"CD MARGIN" means a rate per annum determined in accordance with the
Pricing Schedule.
"CD RATE" means a rate of interest determined pursuant to Section 2.07(b)
on the basis of an Adjusted CD Rate.
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"CD REFERENCE LENDERS" means Citibank, N.A. and Xxxxxx Guaranty Trust
Company of New York.
"CLASS" has the meaning set forth in Section 1.03.
"CLOSING DATE" means the date on or after the Effective Date on which the
Administrative Agent shall have received the documents specified in or pursuant
to Section 3.01.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITMENT" means any Term Loan Commitment or Revolving Credit Commitment,
and "COMMITMENTS" means any or all of the foregoing, as the context may require.
"COMMITMENT SCHEDULE" means the Schedule attached hereto and identified as
such.
"COMMITTED LOAN" means a loan made by a Lender pursuant to Section 2.01;
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term "COMMITTED
LOAN" shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"CONSOLIDATED EBITDA" means, for any fiscal period, Consolidated Net Income
for such period plus, to the extent deducted in determining such Consolidated
Net Income for such period, the aggregate amount of (i) Consolidated Interest
Expense, (ii) consolidated income tax expense and (iii) consolidated
depreciation and amortization expense.
"CONSOLIDATED INTEREST EXPENSE" means, for any fiscal period, the aggregate
interest expense of the Borrower and its Subsidiaries determined on a
consolidated basis for such period.
"CONSOLIDATED NET INCOME" means, for any fiscal period, the net income of
the Borrower and its Subsidiaries, determined on a consolidated basis for such
period.
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"CONSOLIDATED NET WORTH" means, as at any date, the sum, for the Borrower
and its Subsidiaries (determined on a consolidated basis without duplication in
accordance with GAAP), of the following:
(a) the amount of capital stock, plus
(b) the amount of capital in excess of par value, plus
(c) the amount of reinvested earnings (or in the case of a reinvested
earnings deficit, minus the amount of such deficit), minus
(d) the cost of treasury stock.
"COVENANT" means, with respect to any agreement or instrument representing
or governing Indebtedness, any covenant (whether expressed as a covenant or an
event of default) contained therein.
"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"DOCUMENTATION AGENT" means Citibank, N.A. in its capacity as documentation
agent hereunder.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"DOMESTIC LENDING OFFICE" means, as to each Lender, its office located at
its address set forth in its Administrative Questionnaire (or identified in its
Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent; provided that any Lender
may so
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designate separate Domestic Lending Offices for its Base Rate Loans, on the one
hand, and its CD Loans, on the other hand, in which case all references herein
to the Domestic Lending Office of such Lender shall be deemed to refer to either
or both of such offices, as the context may require.
"DOMESTIC LOANS" means CD Loans or Base Rate Loans or both.
"DOMESTIC RESERVE PERCENTAGE" has the meaning set forth in Section 2.07(b).
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 9.09.
"ENVIRONMENTAL CLAIM" means, with respect to any Person, (a) any written or
oral notice, claim, demand or other communication (collectively, a "CLAIM") by
any other Person alleging or asserting such Person's liability for investigatory
costs, cleanup costs, governmental response costs, damages to natural resources
or other Property, personal injuries, fines or penalties arising out of, based
on or resulting from (i) the presence, or Release into the environment, of any
Hazardous Material at any location, whether or not owned by such Person, or (ii)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law. The term "ENVIRONMENTAL CLAIM" shall include, without
limitation, any claim by any governmental authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Law, and any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"ENVIRONMENTAL LAWS" means any and all present and future Federal, state,
local and foreign laws, rules or regulations, and any orders or decrees, in each
case as now or hereafter in effect, relating to the regulation or protection of
human health, safety or the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
6
"ERISA AFFILIATE" means any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which the Borrower is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which the
Borrower is a member.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"EURO-DOLLAR LENDING OFFICE" means, as to each Lender, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its Euro-
Dollar Lending Office) or such other office, branch or affiliate of such Lender
as it may hereafter designate as its Euro-Dollar Lending Office by notice to the
Borrower and the Administrative Agent.
"EURO-DOLLAR LOAN" means (i) a Committed Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election or (ii) an overdue amount which was a Euro-
Dollar Loan immediately before it became overdue.
"EURO-DOLLAR MARGIN" means a rate per annum determined in accordance with
the Pricing Schedule.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to Section
2.07(c) on the basis of a London Interbank Offered Rate.
"EURO-DOLLAR REFERENCE LENDERS" means the principal London offices of
Citibank, N.A. and Xxxxxx Guaranty Trust Company of New York.
"EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "EUROCURRENCY LIABILITIES" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
7
assets which includes loans by a non-United States office of any Lender to
United States residents).
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCLUDED ITEMS" means, without duplication, (i) non-recurring charges
incurred during Fiscal Year 1998 in connection with the Acquisition (without
adjustment for related tax effects) to the extent such amounts do not exceed
$105,000,000 and (ii write downs of capitalized research and development related
to the Acquisition and losses on dispositions of assets (without adjustment for
related tax effects) to the extent such write downs and losses do not exceed
$295,000,000 and are incurred within 30 months of the Acquisition.
"EXISTING CREDIT AGREEMENT" has the meaning specified in Section 3.01(f).
"EXPOSURE" means, at any time as to any Lender, the sum of (i) such
Lender's Term Loan Commitment, if still in existence, or the outstanding
principal amount of such Lender's Term Loans, if its Term Loan Commitment is no
longer in existence, plus (ii) such Lender's Revolving Credit Commitment, if
still in existence, or the outstanding principal amount of such Lender's
Revolving Credit Loans and Money Market Loans, if its Revolving Credit
Commitment is no longer in existence.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Xxxxxx Guaranty Trust Company of New
York on such day on such transactions as determined by the Administrative Agent.
"FISCAL YEAR" refers to a fiscal year of the Borrower, identified by the
calendar year in which such fiscal year ends.
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"FIXED RATE LOANS" means CD Loans or Euro-Dollar Loans or Money Market
Loans (excluding Money Market LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01) or any combination of the foregoing.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02 hereof, are to be
used in making the calculations for purposes of determining compliance with this
Agreement.
"GROUP OF LOANS" means at any time a group of Loans consisting of (i) all
Committed Loans which are Base Rate Loans at such time, (ii) all Euro-Dollar
Loans having the same Interest Period at such time or (iii) all CD Loans having
the same Interest Period at such time, provided that, if a Committed Loan of any
particular Lender is converted to or made as a Base Rate Loan pursuant to
Section 8.02 or 8.05, such Loan shall be included in the same Group or Groups of
Loans from time to time as it would have been in if it had not been so converted
or made.
"GUARANTEE" means a guarantee, an endorsement, a contingent agreement to
purchase or to furnish funds for the payment or maintenance of, or otherwise
directly or indirectly to be or become contingently liable under or with respect
to, the Indebtedness of any Person, but excluding endorsements for collection or
deposit in the ordinary course of business. The terms "GUARANTEE" and
"GUARANTEED" used as a verb shall have a correlative meaning.
"HAZARDOUS MATERIAL" means collectively, (a) any petroleum or petroleum
products, flammable explosives, radioactive materials, asbestos in any form that
is or could become friable, urea formaldehyde foam insulation, and transformers
or other equipment that contain dielectric fluid containing polychlorinated
biphenyls (PCB's), (b) any chemicals or other materials or substances which are
now or hereafter become defined as or included in the definition of "HAZARDOUS
SUBSTANCES", "HAZARDOUS WASTES", "HAZARDOUS MATERIALS", "EXTREMELY HAZARDOUS
WASTES", "RESTRICTED HAZARDOUS WASTES", "TOXIC SUBSTANCES", "TOXIC POLLUTANTS",
"CONTAMINANTS", "POLLUTANTS" or words of similar import under any Environmental
Law and (c) any other chemical or other material or substance, exposure to which
is now or hereafter prohibited, limited or regulated under any Environmental
Law.
"INDEBTEDNESS" means, for any Person: (a) obligations created, issued or
incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such Property
9
from such Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of Property, other than trade accounts payable (other than
for borrowed money) arising, and accrued expenses incurred, in the ordinary
course of business so long as such trade accounts payable are payable within one
year of the date the respective goods are delivered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
indebtedness so secured has been assumed by such Person; (d) obligations of such
Person under any contract for the purchase of materials, supplies or other
Property or the rendering of services if such contract (or any related document)
requires that payment for such materials, supplies or other Property or services
shall be made regardless of whether or not delivery of such materials, supplies
or other Property is ever made or tendered or such services are ever rendered;
(e) obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for
account of such Person (other than commercial documentary letters of credit);
(f) Capital Lease Obligations of such Person; and (g) Indebtedness of others
Guaranteed by such Person; provided, that Indebtedness of the Borrower and its
Subsidiaries shall not include obligations of the Borrower and its Subsidiaries
in respect of unfunded liabilities of the Borrower in respect of postretirement
health and welfare benefits under Financial Accounting Standards Board Statement
of Financial Accounting Standards No. 106 ("EMPLOYERS' ACCOUNTING FOR
POSTRETIREMENT BENEFITS OTHER THAN PENSIONS") not in excess of $96,000,000 in
the aggregate.
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INTEREST COVERAGE RATIO" means, at any date, the ratio of (i) Adjusted
Consolidated EBITDA to (ii) Consolidated Interest Expense, in each case for the
period of four consecutive fiscal quarters most recently ended on or prior to
such date.
"INTEREST PERIOD" means: (1) with respect to each Euro-Dollar Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing or on the date specified in the applicable Notice of Interest Rate
Election and ending one, two, three or six months thereafter, as the Borrower
may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding Euro-
Dollar Business Day;
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(b) any Interest Period which begins on the last Euro-Dollar 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, subject to clauses (c) and (d) below, end on the last Euro-Dollar
Business Day of a calendar month;
(c) no Interest Period for any Revolving Credit Loan shall extend beyond
the Revolving Credit Termination Date; and
(d) no Interest Period for any Term Loan shall extend beyond the Term Loan
Maturity Date;
(2) with respect to each CD Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30,
60, 90 or 180 days thereafter, as the Borrower may elect in the applicable
notice; provided that:
(a) any Interest Period (other than an Interest Period determined pursuant
to clause (b) or (c) below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day;
(b) no Interest Period for any Revolving Credit Loan shall extend beyond
the Revolving Credit Termination Date; and
(c) no Interest Period for any Term Loan shall extend beyond the Term Loan
Maturity Date;
(3) with respect to each Money Market LIBOR Loan, the period commencing on the
date of borrowing specified in the applicable Notice of Borrowing and
ending such whole number of months thereafter (but not less than 1 month)
as the Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar 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
11
Interest Period) shall, subject to clause (c) below, end on the last Euro-Dollar
Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the Revolving
Credit Termination Date shall end on the Revolving Credit Termination Date; and
(4) with respect to each Money Market Absolute Rate Loan, the period commencing
on the date of borrowing specified in the applicable Notice of Borrowing
and ending such number of days thereafter (but not less than 7 days) as the
Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day; and
(b) any Interest Period which would otherwise end after the Revolving
Credit Termination Date shall end on the Revolving Credit Termination Date.
"LENDER" means each bank or other financial institution listed on the
signature pages hereof, each Assignee which becomes a Lender pursuant to Section
9.06(c), and their respective successors.
"LIBOR AUCTION" means a solicitation of Money Market Quotes setting forth
Money Market Margins based on the London Interbank Offered Rate pursuant to
Section 2.03.
"LIEN" means, with respect to any Property, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
Property. For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien any Property that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement (other than an operating lease)
relating to such Property.
"LOAN" means a Domestic Loan, a Euro-Dollar Loan or a Money Market Loan and
"LOANS" means Domestic Loans, Euro-Dollar Loans or Money Market Loans or any
combination of the foregoing.
"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.07(c).
12
"MARGIN REGULATIONS" means Regulations G and U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
financial condition, operations or business taken as a whole of the Borrower and
its Subsidiaries, (b) the ability of the Borrower to perform its obligations
hereunder and under the Notes, (c) the validity or enforceability of this
Agreement or of the Notes or (d) the rights and remedies of the Lenders and the
Agents hereunder and under the Notes.
"MERGER AGREEMENT" means the Agreement and Plan of Merger dated as of July
23, 1997, among Target, the Offeror and the Borrower, in substantially the form
of the draft of July 23, 1997 heretofore furnished to each of the Lenders, with
such changes (other than changes to (i) the conditions set forth in Article 8
and Annex A thereto in any respect material to the creditworthiness of the
Borrower or to the rights and obligations of the Lenders hereunder, (ii) the
price at which the Borrower will offer to purchase all the outstanding shares of
Common Stock, par value $.001 per share, of Target, including the associated
right to purchase Series A Junior Participating Preferred Stock and (iii) the
latest date upon which any of the Borrower, the Offeror or Target may terminate
the Merger Agreement if the Acquisition has not been consummated) therein as may
be made by the parties thereto.
"MONEY MARKET ABSOLUTE RATE" has the meaning set forth in Section
2.03(d)(ii)(C).
"MONEY MARKET ABSOLUTE RATE LOAN" means a loan to be made by a Lender
pursuant to an Absolute Rate Auction.
"MONEY MARKET LENDING OFFICE" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Administrative Agent; provided that any Lender may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Lender shall be
deemed to refer to either or both of such offices, as the context may require.
"MONEY MARKET LIBOR LOAN" means a loan to be made by a Lender pursuant to a
LIBOR Auction (including such a loan bearing interest at the Base Rate pursuant
to Section 8.01).
13
"MONEY MARKET LOAN" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"MONEY MARKET MARGIN" has the meaning set forth in Section 2.03(d)(ii)(C).
"MONEY MARKET QUOTE" means an offer by a Lender to make a Money Market Loan
in accordance with Section 2.03.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan defined as such in Section
3(37) of ERISA to which contributions have been made by the Borrower or any
ERISA Affiliate and which is covered by Title IV of ERISA.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, an amount equal
to the cash proceeds received by the Borrower or any of its Subsidiaries from or
in respect of such Asset Sale (including any cash proceeds received as interest
or similar income or other cash proceeds of any noncash proceeds of any Asset
Sale), less (a) any fees, costs and expenses incurred by such Person in respect
of such Asset Sale, (b) the amount of any Debt secured by a Lien on any asset
disposed of in such Asset Sale and discharged from the proceeds thereof, (c) any
taxes actually paid or to be payable by such Person (as estimated by a senior
financial or accounting officer of the Borrower, giving effect to the overall
tax position of the Borrower) in respect of such Asset Sale, (d) all payments
made with respect to liabilities associated with the assets which are the
subject of the Asset Sale, including, without limitation, trade payables and
other accrued liabilities, (e) appropriate amounts to be provided by such Person
or any Subsidiary thereof, as the case may be, as a reserve in accordance with
generally accepted accounting principles against any liabilities associated with
such assets and retained by such Person or any Subsidiary thereof, as the case
may be, after such Asset Sale, including, without limitation, liabilities under
any indemnification obligations and severance and other employee termination
costs associated with such Asset Sale, until such time as such amounts are no
longer reserved or such reserve is no longer necessary (at which time any
remaining amounts will become Net Cash Proceeds); and (f) all distributions and
other payments required to be made (or made on a pro rata basis) to minority
interest holders in Subsidiaries of such Person as a result of such Asset Sale.
"NOTES" means promissory notes of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "NOTE" means any one of such promissory notes issued hereunder.
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"NOTICE OF BORROWING" means a Notice of Committed Borrowing (as defined in
Section 2.02)or a Notice of Money Market Borrowing (as defined in Section
2.03(f)).
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.10.
"OFFER TO PURCHASE" means the Offeror's offer to purchase for cash all
outstanding shares of common stock of Target, the terms and conditions of which
offer to purchase shall be reasonably satisfactory in form and substance to the
Required Lenders.
"OFFEROR" means NBP Acquisition Corp., a Delaware corporation and a Wholly-
Owned Subsidiary of the Borrower, and its successors.
"OPERATING LEASE AMOUNT" means, at any time, an amount equal to seven times
the amount by which (i) the minimum rental commitments under non-cancelable
operating leases of the Borrower and its Subsidiaries for the fiscal year of the
Borrower and its Subsidiaries following the most recent fiscal year for which
audited financial statements are available at such time, as reflected in the
notes to such financial statements, exceed (ii) $50,000,000.
"PARENT" means, with respect to any Lender, any Person controlling such
Lender.
"PARTICIPANT" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a limited liability company, a
partnership, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PLAN" means an employee benefit or other plan established or maintained by
the Borrower or any ERISA Affiliate and that is covered by Title IV of ERISA,
other than a Multiemployer Plan.
"PRICING SCHEDULE" means the Schedule attached hereto identified as such.
15
"PRIME RATE" means the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York in New York City from time to time as its
Prime Rate.
"PROPERTY" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"QUARTERLY DATE" means the last day of March, June, September and December
in each year, the first of which shall be the first such day after the date of
this Agreement; provided that if any such day is not a Euro-Dollar Business Day,
then such Quarterly Date shall be the next succeeding Euro-Dollar Business Day
(unless such Euro-Dollar Business Day falls in a subsequent calendar month, in
which event such Quarterly Date shall be the next preceding Euro-Dollar Business
Day).
"REFERENCE LENDERS" means the CD Reference Lenders or the Euro-Dollar
Reference Lenders, as the context may require, and "REFERENCE LENDER" means any
one of such Reference Lenders.
"RELEASE" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including, without limitation, the movement of Hazardous
Materials through ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata.
"REQUIRED LENDERS" means at any time Lenders having at least (i) prior to
the Selldown Date, 75% and (ii) thereafter, 51% of the aggregate amount of the
Exposures at such time.
"REVOLVING CREDIT COMMITMENT" means,
(i) with respect to each Revolving Credit Lender listed on the signature
pages hereof, the amount set forth opposite the name of such Lender under the
heading "Revolving Credit Commitment" in the Commitment Schedule, or
(ii) with respect to each Assignee which becomes a Revolving Credit Lender
pursuant to Section 9.06(c), the amount of the Revolving Credit Commitment
thereby assumed by it,
16
in each case as such amount may be reduced from time to time pursuant to Section
2.09 or 2.11 or increased or reduced by reason of an assignment to or by such
Lender in accordance with Section 9.06(c).
"REVOLVING CREDIT LENDER" means each Lender identified in the Commitment
Schedule as having a Revolving Credit Commitment and each Assignee which
acquires a Revolving Credit Commitment and/or Revolving Credit Loans pursuant to
Section 9.06(c), and their respective successors.
"REVOLVING CREDIT LOAN" means a loan made by a Revolving Credit Lender
pursuant to Section 2.01(b).
"REVOLVING CREDIT PERIOD" means the period from and including the Effective
Date to but not including the Revolving Credit Termination Date.
"REVOLVING CREDIT TERMINATION DATE" means the fifth anniversary of the
Effective Date (or, if such fifth anniversary date is not a Euro-Dollar Business
Day, the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the Revolving Credit
Termination Date shall be the next preceding Euro-Dollar Business Day).
"S&P" means Standard & Poor's Rating Services, a division of The XxXxxx-
Xxxx Companies, Inc.
"SELLDOWN DATE" means the earliest date on which each of the initial
Lenders hereunder shall have assigned to one or more Assignees (other than an
affiliate) 50% or more of its Commitments.
"SUBSIDIARY" means, as to any Person, any corporation, limited liability
company partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person; unless otherwise specified, "SUBSIDIARY"
means a Subsidiary of the Borrower.
17
"SYNDICATION AGENT" means Xxxxxxx Xxxxx Credit Partners L.P. in its
capacity as syndication agent hereunder.
"TARGET" means Nellcor Puritan Xxxxxxx Incorporated, a Delaware
corporation.
"TERM AVAILABILITY PERIOD" means the period from and including the
Effective Date to and including December 31, 1997.
"TERM LOAN" means a loan made by a Term Loan Lender pursuant to Section
2.01(a).
"TERM LOAN COMMITMENT" means,
(i) with respect to each Term Loan Lender listed on the signature pages
hereof, the amount set forth opposite the name of such Lender under the heading
"TERM LOAN COMMITMENT" in the Commitment Schedule, or
(ii) with respect to each Assignee which becomes a Term Loan Lender
pursuant to Section 9.06(c), the amount of the Term Loan Commitment thereby
assumed by it,
in each case as such amount may be reduced from time to time pursuant to Section
2.09 or 2.11 or increased or reduced by reason of an assignment to or by such
Lender in accordance with Section 9.06(c).
"TERM LOAN LENDER" means each Lender identified in the Commitment Schedule
as having a Term Loan Commitment and each Assignee which acquires a Term Loan
Commitment or Term Loan pursuant to Section 9.06(c), and their respective
successors.
"TERM LOAN MATURITY DATE" means the second anniversary of the Effective
Date (or if such second anniversary date is not a Euro-Dollar Business Day, the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business falls
in another calendar month, in which case the Term Loan Maturity Date shall be
the next preceding Euro-Dollar Business Day).
"TOTAL CAPITAL" means, at any time, Adjusted Consolidated Net Worth plus
Total Debt.
18
"TOTAL DEBT" means, at any time, the aggregate outstanding principal amount
of all Indebtedness of the Borrower and its Subsidiaries at such time
(determined on a consolidated basis without duplication in accordance with
GAAP).
"TYPE" has the meaning set forth in Section 1.03.
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Borrower.
"UNITED STATES" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Lenders; provided that, if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any covenant in Article 5 to eliminate the
effect of any change in generally accepted accounting principles on the
operation of such covenant (or if the Administrative Agent notifies the Borrower
that the Required Lenders wish to amend Article 5 for such purpose), then the
Borrower's compliance with such covenant shall be determined on the basis of
generally accepted accounting principles in effect immediately before the
relevant change in generally accepted accounting principles became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
Section 1.03. Classes and Types of Loans and Borrowings. The term
"Borrowing" denotes the aggregation of Loans of one or more Lenders to be made
to the Borrower pursuant to Article 2 on the same date, all of which Loans are
of the same Class and Type (subject to Article 8) and, except in the case of
Base Rate Loans, have the same initial Interest Period. Loans hereunder are
distinguished by "Class" and by "Type". The "CLASS" of a Loan (or of a
Commitment to make such a Loan or of a Borrowing comprised of such Loans) refers
to the determination whether such Loan is a Term Loan or Revolving Credit Loan,
each of which constitutes a Class. The "TYPE" of a Loan refers to the
19
determination whether such Loan is a Euro-Dollar Loan, a CD Loan, a Base Rate
Loan or a Money Market Loan, each of which constitutes a "Type". Identification
of a Loan (or a Borrowing) by both Class and Type (e.g., a "EURO-DOLLAR TERM
LOAN") indicates that such Loan is both a Term Loan and a Euro-Dollar Loan (or
that such Borrowing is comprised of such Loans).
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend. (a) Term Loan Facility. During the
Term Availability Period each Term Loan Lender severally agrees, on the terms
and conditions set forth in this Agreement, to make a single Term Loan to the
Borrower in an amount not to exceed the amount of its Term Loan Commitment. The
Term Loan Commitments are not revolving in nature, and amounts repaid or prepaid
pursuant to Section 2.11 or Section 2.12 shall not be reborrowed.
(b) Revolving Credit Facility. During the Revolving Credit Period, each
Revolving Credit Lender severally agrees, on the terms and conditions set forth
in this Agreement, to make Revolving Credit Loans to the Borrower from time to
time in an aggregate amount at any time outstanding not to exceed the amount of
its Revolving Credit Commitment. Within the limits specified in this Agreement,
the Borrower may borrow under this Section 2.01(b), prepay Revolving Credit
Loans to the extent permitted by Section 2.12 and reborrow at any time during
the Revolving Credit Period pursuant to this Section 2.01(b).
(c) Minimum Amount. Each Borrowing under this Section 2.01 shall be in
the aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount of the
unused Commitments of the relevant Class) and shall be made from the several
Lenders ratably in proportion to their respective Commitments of the relevant
Class.
Section 2.02. Notice of Committed Borrowing. The Borrower shall give the
Administrative Agent notice (a "NOTICE OF COMMITTED BORROWING") not later than
10:30 A.M. (New York City time) on (x) the date of each Base Rate Borrowing, (y)
the second Domestic Business Day before each CD Borrowing and (z) the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing, (A) specifying:
20
(i) the date of such Borrowing, which shall be a Domestic Business Day in
the case of a Domestic Borrowing or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the Class and initial Type of Loans comprising such Borrowing; and
(iv) in the case of a Fixed Rate Borrowing, the duration of the Interest
Period applicable thereto, subject to the provisions of the definition of
Interest Period; and
(B) certifying that each of the conditions precedent to such Borrowing has
been satisfied.
Section 2.03. Money Market Borrowings. (a) The Money Market Option. In
addition to Revolving Credit Borrowings pursuant to Section 2.01, but within the
limitations of the Revolving Credit Commitments as contemplated by Section
3.02(c), the Borrower may, as set forth in this Section, request the Lenders
during the Revolving Credit Period to make offers to make Money Market Loans to
the Borrower. The Lenders may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so as to be received not
later than 10:30 A.M. (New York City time) on (x) the fifth Euro-Dollar Business
Day prior to the date of Borrowing proposed therein, in the case of a LIBOR
Auction or (y) the Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar Business
Day in the case of a LIBOR Auction or a Domestic Business Day in the case of an
Absolute Rate Auction,
21
(ii) the aggregate amount of such Borrowing, which shall be $10,000,000 or
a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a Money
Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than
one Interest Period in a single Money Market Quote Request. No Money Market
Quote Request shall be given within five Euro-Dollar Business Days (or such
other number of days as the Borrower and the Administrative Agent may agree) of
any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a Money
Market Quote Request, the Administrative Agent shall send to the Lenders by
telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Lender to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Lender may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be
submitted to the Administrative Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M. (New
York City time) on the proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have notified to
the Lenders not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by the Administrative
Agent (or any affiliate of the Administrative Agent) in the capacity of a Lender
may be submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the other Lenders,
in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the
other
22
Lenders, in the case of an Absolute Rate Auction. Subject to Articles 3 and 6,
any Money Market Quote so made shall be irrevocable except with the written
consent of the Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of Exhibit D
hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each such
offer is being made, which principal amount (w) may be greater than or less than
the Commitment of the quoting Lender, (x) must be $5,000,000 or a larger
multiple of $1,000,000, (y) may not exceed the principal amount of Money Market
Loans for which offers were requested, (z) may be subject to an aggregate
limitation as to the principal amount of Money Market Loans for which offers
being made by such quoting Lender may be accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "MONEY MARKET MARGIN") offered for
each such Money Market Loan, expressed as a percentage (specified to the nearest
1/10,000th of 1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest per
annum (specified to the nearest 1/10,000th of 1%) (the "MONEY MARKET ABSOLUTE
RATE") offered for each such Money Market Loan, and
(E) the identity of the quoting Lender.
A Money Market Quote may set forth up to five separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or does not
specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
23
(C) proposes terms other than or in addition to those set forth in the
applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly notify
the Borrower of the terms (x) of any Money Market Quote submitted by a Lender
that is in accordance with subsection (d) and (y) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market Quote
submitted by such Lender with respect to the same Money Market Quote Request.
Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M. (New
York City time) on (x) the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "NOTICE OF MONEY MARKET BORROWING") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing may not
exceed the applicable amount set forth in the related Money Market Quote
Request;
(ii) the principal amount of each Money Market Borrowing must be
$10,000,000 or a larger multiple of $1,000,000;
24
(iii) acceptance of offers may only be made on the basis of ascending Money
Market Margins or Money Market Absolute Rates, as the case may be; and
(iv) the Borrower may not accept any offer that is described in subsection
(d)(iii) or that otherwise fails to comply with the requirements of this
Agreement.
(g) Allocation by Administrative Agent. If offers are made by two or more
Lenders with the same Money Market Margins or Money Market Absolute Rates, as
the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
Section 2.04. Notice to the Lenders; Funding of Loans. (a) Upon receipt of
a Notice of Borrowing, the Administrative Agent shall promptly notify each
Lender of the contents thereof and of such Lender's share (if any) of such
Borrowing and such Notice of Borrowing shall not thereafter be revocable by the
Borrower.
(b) Not later than 12:00 Noon (New York City time) on the date of each
Borrowing, each Lender participating therein shall make available its share of
such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address referred to in Section 9.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
make the funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
25
corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.07 and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement.
Section 2.05. Notes. (a) The Loans of each Lender shall be evidenced by
a single Note payable to the order of such Lender for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Lender's Loans.
(b) Each Lender may, by notice to the Borrower and the Administrative
Agent, request that its Loans of a particular Class or Type be evidenced by a
separate Note in an amount equal to the aggregate unpaid principal amount of
such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences
solely Loans of the relevant Class or Type. Each reference in this Agreement to
the "NOTE" of such Lender shall be deemed to refer to and include any or all of
such Notes, as the context may require.
(c) Upon receipt of each Lender's Note pursuant to Section 3.01(a), the
Administrative Agent shall forward such Note to such Lender. Each Lender shall
record the date, amount, type and maturity of each Loan made by it and the date
and amount of each payment of principal made by the Borrower with respect
thereto, and may, if such Lender so elects in connection with any transfer or
enforcement of its Note, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that the failure of any Lender to make any
such recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Notes. Each Lender is hereby irrevocably authorized by
the Borrower so to endorse its Note and to attach to and make a part of its Note
a continuation of any such schedule as and when required.
Section 2.06. Maturity of Loans. (a) Each Term Loan shall mature, and
the principal amount thereof together with accrued interest thereon shall be due
and payable, on the Term Loan Maturity Date.
26
(b) Each Revolving Credit Loan shall mature, and the principal amount
thereof together with accrued interest thereon shall be due and payable, on the
Revolving Credit Termination Date.
(c) Each Money Market Loan included in any Money Market Borrowing shall
mature, and the principal amount thereof together with accrued interest thereon
shall be due and payable, on the last day of the Interest Period applicable to
such Borrowing.
Section 2.07. Interest Rates. (a) Each Base Rate Loan shall bear interest
on the outstanding principal amount thereof, for each day from the date such
Loan is made until it becomes due, at a rate per annum equal to the Base Rate
for such day. Such interest shall be payable quarterly in arrears on each
Quarterly Date and, with respect to the principal amount of any Base Rate Loan
converted to a CD Loan or a Euro-Dollar Loan, on each date a Base Rate Loan is
so converted. Any overdue principal of or interest on any Base Rate Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the rate otherwise applicable to Base Rate Loans for
such day.
(b) Each CD Loan shall bear interest on the outstanding principal amount
thereof, for each day during each Interest Period applicable thereto, at a rate
per annum equal to the sum of the CD Margin for such day plus the Adjusted CD
Rate applicable to such Interest Period; provided that if any CD Loan or any
portion thereof shall, as a result of clause (2)(b) of the definition of
Interest Period, have an Interest Period of less than 30 days, such portion
shall bear interest during such Interest Period at the rate applicable to Base
Rate Loans during such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than 90
days, at intervals of 90 days after the first day thereof. Any overdue
principal of or interest on any CD Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the sum of 2% plus the rate
applicable to Base Rate Loans for such day, provided that until the end of the
Interest Period applicable to such CD Loan, any such overdue principal shall
bear interest at the higher of the foregoing rate and 2% plus the sum of the CD
Margin plus the Adjusted CD Rate applicable to such Loan at the date such
payment was due.
The "ADJUSTED CD RATE" applicable to any Interest Period means a rate per
annum determined pursuant to the following formula:
27
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
---------------
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD BASE RATE" applicable to any Interest Period is the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Lender of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of such CD Reference Lender to
which such Interest Period applies and having a maturity comparable to such
Interest Period.
"DOMESTIC RESERVE PERCENTAGE" means for any day that percentage (expressed
as a decimal) which is in effect on such day, as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including without limitation any basic,
supplemental or emergency reserves) for a member bank of the Federal Reserve
System in New York City with deposits exceeding five billion dollars in respect
of new non-personal time deposits in dollars in New York City having a maturity
comparable to the related Interest Period and in an amount of $100,000 or more.
The Adjusted CD Rate shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
"ASSESSMENT RATE" means for any day the annual assessment rate in effect on
such day which is payable by a member of the Bank Insurance Fund classified as
adequately capitalized and within supervisory subgroup "A" (or a comparable
successor assessment risk classification) within the meaning of 12 C.F.R. (S)
327.4(a) (or any successor provision) to the Federal Deposit Insurance
Corporation (or any successor) for such Corporation's (or such successor's)
insuring time deposits at offices of such institution in the United States. The
28
Adjusted CD Rate shall be adjusted automatically on and as of the effective date
of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the Euro-Dollar Margin for such day plus
the London Interbank Offered Rate applicable to such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three months, at intervals of three
months after the first day thereof.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period means
the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of the
respective rates per annum at which deposits in dollars are offered to each of
the Euro-Dollar Reference Lenders in the London interbank market at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days before the
first day of such Interest Period in an amount approximately equal to the
principal amount of the Euro-Dollar Loan of such Euro-Dollar Reference Lender to
which such Interest Period is to apply and for a period of time comparable to
such Interest Period.
(d) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the rate applicable to Base Rate Loans for such day,
provided that until the end of the Interest Period applicable to such Euro-
Dollar Loan, any such overdue principal shall bear interest at the higher of the
foregoing rate and the sum of 2% plus the Euro-Dollar Margin for such day plus
the London Interbank Offered Rate applicable to such Loan at the date such
payment was due.
(e) Subject to Section 8.01, each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07(c) as if the related Money Market LIBOR Borrowing were a Committed Euro-
Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the Lender
making such Loan in accordance with Section 2.03. Each Money Market Absolute
Rate Loan shall bear interest on the outstanding principal amount thereof, for
the Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Lender making such Loan in accordance with
Section 2.03. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any overdue
29
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Base Rate for such day.
(f) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder. The Administrative Agent shall give prompt notice to
the Borrower and the participating Lenders of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(g) Each Reference Lender agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section. If any
Reference Lender does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Lender or Lenders or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
Section 2.08. Facility Fees. The Borrower shall pay to the Administrative
Agent, for the account of the Lenders ratably in accordance with their
respective Exposures, a facility fee for each day at a rate per annum equal to
the Facility Fee Rate for such day (determined in accordance with the Pricing
Schedule), on the aggregate amount of the Exposures on such day. Such facility
fees shall accrue for each day from and including the Effective Date to but
excluding the date on which no Lender has any Exposure (the "TERMINATION DATE").
Accrued fees under this Section shall be payable quarterly in arrears on each
Quarterly Date and on the Termination Date.
Section 2.09. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments of any Class at any time, if
no Loans of such Class are outstanding at such time or (ii) ratably reduce from
time to time by an aggregate amount of $10,000,000 or a larger multiple of
$1,000,000, the aggregate amount of the Commitments of any Class in excess of
the aggregate outstanding amount of the Loans of such Class (in each of cases
(i) and (ii), after giving effect to any mandatory or optional prepayments to be
made at such time and treating Money Market Loans as part of the Class of
Revolving Credit Loans for this purpose).
Section 2.10. Method of Electing Interest Rates. (a) The Loans included in
each Committed Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
30
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to convert
such Loans to CD Loans as of any Domestic Business Day or to Euro-Dollar Loans
as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to convert such
Loans to Base Rate Loans or Euro-Dollar Loans or elect to continue such Loans as
CD Loans for an additional Interest Period, subject to Section 2.14 in the case
of any such conversion or continuation effective on any day other than the last
day of the then current Interest Period applicable to such Loans; and
(iii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or CD Loans or elect to continue such
Loans as Euro-Dollar Loans for an additional Interest Period, subject to Section
2.14 in the case of any such conversion or continuation effective on any day
other than the last day of the then current Interest Period applicable to such
Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF
INTEREST RATE ELECTION") to the Administrative Agent not later than 10:30 A.M.
(New York City time) on the third Euro-Dollar Business Day before the conversion
or continuation selected in such notice is to be effective (unless the relevant
Loans are to be converted to Domestic Loans of the other type or are CD Rate
Loans to be continued as CD Rate Loans for an additional Interest Period, in
which case such notice shall be delivered to the Administrative Agent not later
than 10:30 A.M. (New York City time) on the second Domestic Business Day before
such conversion or continuation is to be effective). A Notice of Interest Rate
Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each $10,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice applies;
31
(ii) the date on which the conversion or continuation selected in such
notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the new type
of Loans and, if the Loans being converted are to be Fixed Rate Loans, the
duration of the next succeeding Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the Borrower
pursuant to subsection (a) above, the Administrative Agent shall promptly notify
each Lender of the contents thereof and such notice shall not thereafter be
revocable by the Borrower. If the Borrower fails to deliver a timely Notice of
Interest Rate Election to the Administrative Agent for any Group of Fixed Rate
Loans, such Loans shall be converted into Base Rate Loans on the last day of the
then current Interest Period applicable thereto.
(d) An election by the Borrower to change or continue the rate of interest
applicable to any Group of Loans pursuant to this Section 2.10 shall not
constitute a "BORROWING" subject to the provisions of Section 3.02.
Section 2.11. Mandatory Reduction and Termination of Commitments; Mandatory
Prepayments. (a) The Term Commitments shall terminate at the close of business
on the earlier of (i) the date of the Term Borrowing hereunder and (ii) the last
day of the Term Availability Period.
(b) The Revolving Credit Commitments shall terminate on the Revolving
Credit Termination Date.
(c) If an Asset Sale shall occur, an amount equal to the Net Cash Proceeds
thereof shall be applied as follows until such amount has been fully applied:
First, to the reduction of the Term Loan Commitments until such
Commitments shall have been reduced to zero; and
32
Second, to the prepayment of Term Loans, until the Term Loans shall
have been prepaid in full.
Each such reduction and/or prepayment shall be made within five Euro-Dollar
Business Days of receipt by the Borrower or any of its Subsidiaries, as the case
may be, of such Net Cash Proceeds, provided that
(i) if the Net Cash Proceeds in respect of any Asset Sale are less than
$5,000,000, such reduction and/or prepayment shall be made within five Euro-
Dollar Business Days of receipt of proceeds such that, together with all other
such amounts not previously applied, the Net Cash Proceeds are equal to at least
$5,000,000; and
(ii) if any prepayment would otherwise require prepayment of Fixed Rate
Loans or portions thereof prior to the last day of the then current Interest
Period, then such prepayment shall, unless the Administrative Agent otherwise
notifies the Borrower upon the instructions of the Required Lenders, be deferred
to the last day of such Interest Period.
(d) Unless at such time the Borrower's long-term debt is rated BBB or
higher by S&P and Baa2 or higher by Xxxxx'x, the aggregate amount of the
Revolving Credit Commitments shall on June 30, 2000 be reduced to $1,400,000,000
and, if at such time the sum of the aggregate outstanding principal amount of
Revolving Credit Loans and the aggregate outstanding principal amount of Money
Market Loans exceeds the aggregate amount of the Revolving Credit Commitments as
so reduced, the Borrower shall on such date prepay a principal amount of such
Loans equal to such excess.
(e) Each reduction of the Commitments and/or prepayment of Loans shall be
applied ratably to the respective Commitments and/or Loans of the relevant Class
of all Lenders. Each payment of principal of the Loans of any Class shall be
made together with interest accrued and unpaid on the amount repaid to the date
of payment. Each payment of the Loans of any Class shall be applied to such
Group or Groups of Loans of such Class as the Borrower may designate (or,
failing such designation, as determined by the Administrative Agent).
(f) The Borrower shall give the Administrative Agent at least five Euro-
Dollar Business Days' notice of each prepayment required to be made pursuant to
subsection (c) or (d).
33
Section 2.12. Optional Prepayments. (a) Subject in the case of any Fixed
Rate Loans to Section 2.14, the Borrower may, upon at least one Domestic
Business Day's notice to the Administrative Agent, prepay the Group of Base Rate
Loans (or any Money Market Borrowing bearing interest at the Base Rate pursuant
to Section 8.01), upon at least three Domestic Business Days' notice to the
Administrative Agent, prepay any Group of CD Loans, or upon at least three Euro-
Dollar Business Days' notice to the Administrative Agent, prepay any Group of
Euro-Dollar Loans, in each case in whole at any time, or from time to time in
part in amounts aggregating $10,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Lenders included in such Group or
Borrowing.
(b) Except as provided in subsection (a) above the Borrower may not prepay
all or any portion of the principal amount of any Money Market Loan prior to the
maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
Section 2.13. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans and of fees
hereunder, not later than 12:00 Noon (New York City time) on the date when due,
in Federal or other funds immediately available in New York City, to the
Administrative Agent at its address referred to in Section 9.01. The
Administrative Agent will promptly distribute to each Lender its ratable share
of each such payment received by the Administrative Agent for the account of the
Lenders. Whenever any payment of principal of, or interest on, the Domestic
Loans or of fees shall be due on a day which is not a Domestic Business Day, the
date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the Euro-
Dollar Loans or the Money Market LIBOR Loans shall be due on a day which is not
a Euro-Dollar Business Day, the date for payment thereof shall be extended to
the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. Whenever any payment of
principal of, or interest on, the Money Market Absolute Rate Loans shall be due
on a day which is not a Euro-Dollar Business Day, the date for payment thereof
shall be extended to the next succeeding Euro-Dollar
34
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the
Borrower shall not have so made such payment, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
Section 2.14. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted (pursuant to Article 2, 6 or 8 or otherwise) on any day other than
the last day of an Interest Period applicable thereto, or the last day of an
applicable period fixed pursuant to Section 2.07(d), or if the Borrower fails to
borrow or prepay any Fixed Rate Loans after notice has been given to any Lender
in accordance with Section 2.04(a) or 2.12(c), the Borrower shall reimburse each
Lender within 15 days after demand for any resulting loss or expense incurred by
it (or by an existing or prospective Participant in the related Loan), including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment or conversion or failure to borrow or prepay, provided that
such Lender shall have delivered to the Borrower a certificate as to the amount
of such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
Section 2.15. Computation of Interest and Fees. Interest based on the
Prime Rate hereunder shall be computed on the basis of a year of 365 days (or
366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
Section 2.16. Regulation D Compensation. For so long as any Lender
maintains reserves against "EUROCURRENCY LIABILITIES" (or any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-
35
Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of such Lender to
United States residents), and as a result the cost to such Lender (or its
Applicable Lending Office) of making or maintaining its Euro-Dollar Loans is
increased, then such Lender may require the Borrower to pay, contemporaneously
with each payment of interest on the Euro-Dollar Loans, additional interest on
the related Euro-Dollar Loan of such Lender at a rate per annum determined by
such Lender up to but not exceeding the excess of (i) (A) the applicable London
Interbank Offered Rate divided by (B) one minus the Euro-Dollar Reserve
Percentage over (ii) the applicable London Interbank Offered Rate. Any Lender
wishing to require payment of such additional interest (x) shall so notify the
Borrower and the Administrative Agent, in which case such additional interest on
the Euro-Dollar Loans of such Lender shall be payable to such Lender at the
place indicated in such notice with respect to each Interest Period commencing
at least three Euro-Dollar Business Days after the giving of such notice and (y)
shall furnish to the Borrower at least five Euro-Dollar Business Days prior to
each date on which interest is payable on the Euro-Dollar Loans an officer's
certificate setting forth in reasonable detail the amount to which such Lender
is then entitled under this Section 2.16 (which shall be consistent with such
Lender's good faith estimate of the level at which the related reserves are
maintained by it).
ARTICLE 3
Conditions
Section 3.01. Closing. The closing hereunder shall occur on the date that
each of the following conditions shall have been satisfied (or waived in
accordance with Section 9.05):
(a) receipt by the Administrative Agent of a duly executed Note for the
account of each Lender dated on or before the Closing Date complying with the
provisions of Section 2.05.
(b) receipt by the Administrative Agent of an opinion of the General
Counsel of the Borrower, substantially in the form of Exhibit E hereto;
(c) receipt by the Administrative Agent of an opinion of Xxxxx Xxxx &
Xxxxxxxx, special counsel for the Agents, substantially in the form of Exhibit F
hereto;
36
(d) receipt by the Administrative Agent of evidence satisfactory to it of
the payment of all fees, expenses and other amounts payable by the Borrower on
or before the Closing Date to the Administrative Agent and the Lenders in
connection with this Agreement;
(e) all documents the Administrative Agent may reasonably request relating
to the existence of the Borrower, the corporate authority for and the validity
of this Agreement and the Notes, and any other matters relevant hereto, all in
form and substance satisfactory to the Administrative Agent; and
(f) receipt by the Administrative Agent of evidence satisfactory to it
that the principal and interest on all loans and accrued fees under the Existing
Credit Agreement dated as of May 22, 1996 (the "EXISTING CREDIT AGREEMENT")
among the Borrower, the banks party thereto from time to time, Xxxxxx Guaranty
Trust of New York, as administrative agent, and Citibank, N.A., as documentation
agent, have been paid in full and that the commitments thereunder shall have
terminated.
The Administrative Agent shall promptly notify the Borrower and the Lenders
of the Closing Date, and such notice shall be conclusive and binding on all
parties hereto.
Section 3.02. Borrowings. The obligation of any Lender to make a Loan on
the occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) the fact that the Closing Date shall have occurred on or prior to
September 15, 1997;
(b) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03, as the case may be;
(c) in the case of a Revolving Credit Borrowing or a Money Market
Borrowing, the fact that, immediately after such Borrowing, the sum of the
aggregate outstanding principal amount of the Revolving Credit Loans and the
aggregate outstanding principal amount of the Money Market Loans will not exceed
the aggregate amount of the Revolving Credit Commitments;
(d) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing;
37
(e) the fact that the representations and warranties of the Borrower
contained in this Agreement (except, in the case of (i) any Borrowing the
proceeds of which are to be applied to finance the Acquisition and (ii) any
Borrowing made on a date at which the Borrower's long-term debt securities are
rated at least BBB, Baa2 or BBB by any two of S&P, Xxxxx'x or Xxxx & Xxxxxx,
Inc., respectively, and not lower than BBB-, Baa3 or BBB- by the third of such
rating agencies, those contained in Section 4.02(c), in Section 4.03(i) and in
the last sentence of Section 4.12 hereof) shall be true on and as of the date of
such Borrowing; and
(f) in the case of the first Borrowing after giving effect to which the
aggregate outstanding principal amount of the Loans exceeds $550,000,000, the
facts that (x) the Administrative Agent shall have received a certificate of the
chief executive officer or the chief financial officer of the Borrower that the
Offeror shall have accepted tenders of not less than the minimum number of
shares of Target specified in the Offer to Purchase, without waiver of any of
the conditions thereof in any respect material to the creditworthiness of the
Borrower or to the rights and obligations of the Lenders hereunder and (y) the
Administrative Agent shall not have received notice from the Required Lenders
that, in their reasonable determination, any of the conditions specified in the
Offer to Purchase has not been fulfilled in any respect material to the
creditworthiness of the Borrower or to the rights and obligations of the Lenders
hereunder.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts specified
in clauses (c), (d) and (e) of this Section.
ARTICLE 4
Representations and Warranties
The Borrower represents and warrants that:
Section 4.01. Corporate Existence. Each of the Borrower and its
Subsidiaries: (a) is a corporation, partnership or other entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power, and has all
material governmental licenses, authorizations, consents and approvals,
necessary to own its assets and carry on its business as now being or as
proposed to be conducted; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure so to qualify could have
a Material Adverse Effect.
38
Section 4.02. Financial Condition. (a) The Borrower has heretofore
furnished to each of the Lenders the consolidated balance sheet of the Borrower
and its Subsidiaries as at June 30, 1996 and the related consolidated statements
of earnings, cash flows and changes in shareholders' equity of the Borrower and
its Subsidiaries for the fiscal year ended on said date, with the opinion
thereon of Ernst & Young LLP. All such financial statements fairly present, in
all material aspects, the consolidated financial condition of the Borrower and
its Subsidiaries, as at said date, and the consolidated results of their
operations for the fiscal year ended on said date, all in accordance with GAAP.
(b) The Borrower has heretofore furnished to each of the Lenders the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries as at
March 31, 1997 and the related unaudited consolidated statements of earnings,
cash flows and changes in shareholders' equity of the Borrower and its
Subsidiaries for the nine month period ended on said date. All such financial
statements fairly present, in all material aspects, the consolidated financial
condition of the Borrower and its Subsidiaries, as at said date, and the
consolidated results of their operations for the nine month period ended on said
date, all in accordance with GAAP.
(c) As of the Effective Date (which is the only date on which the
representation in this sentence is made), since March 31, 1997, there has been
no material adverse change, and nothing has occurred that is reasonably likely
to result in any material adverse change, in the consolidated financial
condition, operations or business taken as a whole of the Borrower and its
Subsidiaries from that set forth in the financial statements referred to in
clause (b) above as at the date referred to therein. As of any subsequent date
on which this representation is made pursuant to Section 3.02(e), since March
31, 1997, there has been no material adverse change in the ability of the
Borrower to perform its obligations hereunder or in the rights and obligations
of the Lenders hereunder.
Section 4.03. Litigation. Except as may be disclosed in regular periodic
reports filed with the Securities and Exchange Commission prior to the date of
this Agreement (copies of which reports have heretofore been furnished to the
Lenders), there are no legal or arbitral proceedings, or any proceedings by or
before any governmental or regulatory authority or agency, now pending or (to
the knowledge of the Borrower) threatened against the Borrower or any of its
Subsidiaries (i) which, if adversely determined, is reasonably likely to have a
Material Adverse Effect or (ii which in any manner draws into question the
validity of this Agreement or the Notes.
39
Section 4.04. No Breach. None of the execution and delivery of this
Agreement and the Notes, the consummation of the transactions herein
contemplated or compliance with the terms and provisions hereof will conflict
with or result in a breach of, or require any consent under, the charter or by-
laws of the Borrower, or any applicable law or regulation, or any order, writ,
injunction or decree of any court or governmental authority or agency, or any
agreement or instrument to which the Borrower or any of its Subsidiaries is a
party or by which any of them or any of their Property is bound or to which any
of them is subject, or constitute a default under any such agreement or
instrument.
Section 4.05. Action. The Borrower has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Agreement and the Notes; the execution, delivery and performance by the
Borrower of this Agreement and the Notes have been duly authorized by all
necessary corporate action on its part (including, without limitation, any
required shareholder approvals); and this Agreement has been duly and validly
executed and delivered by the Borrower and constitutes, and each of the Notes
when executed and delivered for value will constitute, its legal, valid and
binding obligation, enforceable against the Borrower in accordance with their
respective terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or similar laws of general
applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 4.06. Approvals. No authorizations, approvals or consents of, and
no filings or registrations with, any governmental or regulatory authority or
agency, or any securities exchange, are necessary for the execution, delivery or
performance by the Borrower of this Agreement or the Notes or for the legality,
validity or enforceability hereof.
Section 4.07. ERISA. Each Plan, and, to the knowledge of the Borrower,
each Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law, and no event
or condition has occurred and is continuing as to which the Borrower would be
under an obligation to furnish a report to the Lenders under Section 5.01(e)
hereof.
Section 4.08. Taxes. The Borrower and its Subsidiaries are members of an
affiliated group of corporations filing consolidated returns for Federal income
tax purposes, of which the Borrower is the "COMMON PARENT" (within the
40
meaning of Section 1504 of the Code) of such group. The Borrower and its
Subsidiaries have filed all Federal income tax returns and all other material
tax returns that are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower
or any of its Subsidiaries. The charges, accruals and reserves on the books of
the Borrower and its Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of the Borrower, adequate. The Borrower has not
given or been requested to give a waiver of the statute of limitations relating
to the payment of Federal, state, local and foreign taxes or other impositions,
the payment of which is reasonably likely to have a Material Adverse Effect.
Section 4.09. Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is an "INVESTMENT COMPANY", or a company "CONTROLLED" by an
"INVESTMENT COMPANY", within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.10. Public Utility Holding Company Act. Neither the Borrower
nor any of its Subsidiaries is a "HOLDING COMPANY", or an "AFFILIATE" of a
"HOLDING COMPANY," or a "SUBSIDIARY COMPANY" of a "HOLDING COMPANY", within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
Section 4.11. True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Borrower to either Agent or any Lender in connection with the
negotiation, preparation or delivery of this Agreement or included herein or
delivered pursuant hereto, when taken as a whole do not contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements herein or therein, in light of the circumstances under which they
were made, not misleading. All written information furnished after the date
hereof by the Borrower and its Subsidiaries to the Administrative Agent or any
Lender in connection with this Agreement and the transactions contemplated
hereby will be true, complete and accurate in every material respect, or (in the
case of projections) based on reasonable estimates, on the date as of which such
information is stated or certified. There is no fact known to the Borrower that
could have a Material Adverse Effect that has not been disclosed herein or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Lenders for use in connection with the transactions
contemplated hereby.
Section 4.12. Environmental Matters. In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of Environmental
41
Laws on the business, operations and properties of the Borrower and its
Subsidiaries, in accordance with customary industry practice. On the basis of
this review, the Borrower has reasonably concluded that the costs of compliance
with Environmental Laws are unlikely to have a Material Adverse Effect.
ARTICLE 5
Covenants
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable under any Note remains unpaid:
Section 5.01. Financial Statements, Etc. The Borrower will deliver to each
of the Lenders:
(a) as soon as available and in any event within 60 days after the end of
each of the first three quarterly fiscal periods of each fiscal year of the
Borrower, consolidated statements of earnings, cash flows and changes in
shareholders' equity of the Borrower and its Subsidiaries for such period and
for the period from the beginning of the respective fiscal year to the end of
such period, and the related consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such period, setting forth in each case in
comparative form the corresponding consolidated figures for the corresponding
period in the preceding fiscal year, accompanied by a certificate of a senior
financial officer of the Borrower, which certificate shall state that said
consolidated financial statements fairly present, in all material respects, the
consolidated financial condition and results of operations of the Borrower and
its Subsidiaries, in accordance with generally accepted accounting principles,
consistently applied, as at the end of, and for, such period (subject to normal
year-end audit adjustments);
(b) as soon as available and in any event within 120 days after the end of
each fiscal year of the Borrower, consolidated statements of earnings, cash
flows and changes in shareholders' equity of the Borrower and its Subsidiaries
for such fiscal year and the related consolidated balance sheet of the Borrower
and its Subsidiaries as at the end of such fiscal year, setting forth in each
case in comparative form the corresponding consolidated figures for the
preceding fiscal year, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which opinion
shall state that said consolidated financial statements fairly present, in all
material respects, the consolidated financial condition and results of
operations of the Borrower and its
42
Subsidiaries as at the end of, and for, such fiscal year in accordance with
generally accepted accounting principles;
(c) promptly upon their becoming available, copies of all registration
statements and regular periodic reports, if any, which the Borrower shall have
filed with the Securities and Exchange Commission (or any governmental agency
substituted therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(e) as soon as possible, and in any event within ten days after the
Borrower knows or has reason to believe that any of the events or conditions
specified below with respect to any Plan or Multiemployer Plan has occurred or
exists, a statement signed by a senior financial officer of the Borrower setting
forth details respecting such event or condition and the action, if any, that
the Borrower or its ERISA Affiliate proposes to take with respect thereto (and a
copy of any report or notice required to be filed with or given to PBGC by the
Borrower or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of ERISA and the
regulations issued thereunder, with respect to a Plan, as to which PBGC has not
by regulation waived the requirement of Section 4043(a) of ERISA that it be
notified within 30 days of the occurrence of such event (provided that a failure
to meet the minimum funding standard of Section 412 of the Code or Section 302
of ERISA, including, without limitation, the failure to make on or before its
due date a required installment under Section 412(m) of the Code or Section
302(e) of ERISA, shall be a reportable event regardless of the issuance of any
waivers in accordance with Section 412(d) of the Code); and any request for a
waiver under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041 of ERISA of a notice of intent to
terminate any Plan or any action taken by the Borrower or an ERISA Affiliate to
terminate any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Plan,
or the receipt by the Borrower or any ERISA Affiliate of a notice from a
Multiemployer Plan that such action has been taken by PBGC with respect to such
Multiemployer Plan;
43
(iv) the complete or partial withdrawal from a Multiemployer Plan by the
Borrower or any ERISA Affiliate that results in liability under Section 4201 or
4204 of ERISA (including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by the Borrower or any ERISA
Affiliate of notice from a Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to
terminate or has terminated under Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any Multiemployer
Plan against the Borrower or any ERISA Affiliate to enforce Section 515 of
ERISA, which proceeding is not dismissed within 30 days; and
(vi) the adoption of an amendment to any Plan that, pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, would result in the loss of tax-
exempt status of the trust of which such Plan is a part if the Borrower or an
ERISA Affiliate fails to timely provide security to the Plan in accordance with
the provisions of said Sections;
(f) promptly after the Borrower knows or has reason to believe that any
Default has occurred, a notice of such Default describing the same in reasonable
detail and, together with such notice or as soon thereafter as possible, a
description of the action that the Borrower has taken or proposes to take with
respect thereto; and
(g) from time to time such other information regarding the financial
condition, operations, business or prospects of the Borrower or any of its
Subsidiaries (including, without limitation, any Plan or Multiemployer Plan and
any reports or other information required to be filed under ERISA) as any Lender
or the Agent may reasonably request.
The Borrower will furnish to each Lender, at the time it furnishes each set
of financial statements pursuant to paragraph (a) or (b) above, a certificate of
a senior financial officer of the Borrower (i) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is continuing,
describing the same in reasonable detail and describing the action that the
Borrower has taken or proposes to take with respect thereto) and (ii) setting
forth in reasonable detail the computations necessary to determine whether the
Borrower is in compliance with Sections 5.08 and 5.09 hereof as of the end of
the respective quarterly fiscal period or fiscal year.
44
Section 5.02. Litigation. The Borrower will promptly give to each Lender
notice of all legal or arbitral proceedings, and of all proceedings by or before
any governmental or regulatory authority or agency, and any material development
in respect of such legal or other proceedings, affecting the Borrower or any of
its Subsidiaries, except proceedings which, if adversely determined, would not
have a Material Adverse Effect. Without limiting the generality of the
foregoing, the Borrower will give to each Lender notice of the assertion of any
Environmental Claim by any Person against, or with respect to the activities of,
the Borrower or any of its Subsidiaries and notice of any alleged violation of
or non-compliance with any Environmental Laws or any permits, licenses or
authorizations, other than any Environmental Claim or alleged violation which,
if adversely determined, would not have a Material Adverse Effect.
Section 5.03. Existence, Etc. The Borrower will, and will cause each of
its Subsidiaries to:
(a) preserve and maintain its legal existence and all of its material
rights, privileges, licenses and franchises (provided that nothing in this
Section 5.03 shall prohibit any transaction expressly permitted under Sections
5.06 and 5.07 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of governmental or regulatory authorities if failure to
comply with such requirements could have a Material Adverse Effect;
(c) pay and discharge all taxes, assessments and governmental charges or
levies imposed on it or on its income or profits or on any of its Property prior
to the date on which penalties attach thereto, except for any such tax,
assessment, charge or levy the payment of which is being contested in good faith
and by proper proceedings and against which adequate reserves are being
maintained;
(d) maintain all of its Properties used or useful in its business in good
working order and condition, ordinary wear and tear excepted;
(e) keep adequate records and books of account, in which complete entries
will be made in accordance with GAAP; and
(f) subject to Section 9.11 hereof, permit representatives of any Lender,
during normal business hours, to examine, copy and make extracts from its books
and records, to inspect any of its Properties, and to discuss its business and
affairs with its officers, all to the extent reasonably requested by such
Lender.
45
Section 5.04. Insurance. The Borrower will, and will cause each of its
Subsidiaries to, keep insured by financially sound and reputable insurers all
Property of a character usually insured by corporations engaged in the same or
similar business similarly situated against loss or damage of the kinds and in
the amounts customarily insured against by such corporations and carry such
other insurance as is usually carried by such corporations.
Section 5.05. Limitation on Liens. The Borrower will not, nor will it
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, except:
(a) Liens in existence on the date hereof securing Indebtedness
outstanding on the date hereof in an aggregate principal amount not exceeding
$50,000,000;
(b) Liens imposed by any governmental authority for taxes, assessments or
charges not yet due or which are being contested in good faith and by
appropriate proceedings if, unless the amount thereof is not material with
respect to it or its financial condition, adequate reserves with respect thereto
are maintained on the books of the Borrower or the affected Subsidiaries, as the
case may be, in accordance with GAAP;
(c) 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 30 days or which are being contested in good
faith and by appropriate proceedings;
(d) pledges or deposits under worker's compensation, unemployment
insurance and other social security legislation;
(e) 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;
(f) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the use of Property or
minor imperfections in title thereto which, in the aggregate, are not material
in amount, and which do not in any case materially detract from the value of the
Property subject thereto or interfere with the ordinary conduct of the business
of the Borrower or any of its Subsidiaries;
46
(g) Liens on Property of any corporation which becomes a Subsidiary of the
Borrower after the date of this Agreement; provided that such Liens are in
existence at the time such corporation becomes a Subsidiary of the Borrower,
were not created in anticipation thereof and do not at any time secure any
Indebtedness other than Indebtedness which was secured by such Liens at the time
such corporation became a Subsidiary;
(h) Liens upon real and/or tangible personal Property acquired after the
date hereof (by purchase, construction or otherwise) by the Borrower or any of
its Subsidiaries, each of which Liens either (A) existed on such Property before
the time of its acquisition and was not created in anticipation thereof, or (B)
was created solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including the cost of
construction) of such Property; provided that no such Lien shall extend to or
cover any Property of the Borrower or such Subsidiary other than the Property so
acquired and improvements thereon;
(i) Liens incidental to the conduct of its business or the ownership of
its Property which were not incurred in connection with the borrowing of money,
the obtaining of credit or Derivatives Obligations, and which do not in the
aggregate materially detract from the value of its Property or materially impair
the use thereof in the operation of its business;
(j) Liens arising from judgments, decrees or attachments not in excess of
$25,000,000 in the aggregate and in circumstances not constituting an Event of
Default under Section 6.01(h) hereof;
(k) leases or subleases granted to others otherwise permitted by this
Agreement;
(l) UCC financing statements and other similar filings regarding leases
and other Liens otherwise permitted by this Agreement;
(m) rights to receive income in connection with consignment arrangements
or licensing agreements in the ordinary course of the Borrower's or such
Subsidiary's business, as the case may be;
(n) Liens on cash and cash equivalents securing Derivatives Obligations,
provided that the aggregate amount of cash and cash equivalents subject to such
Liens may at no time exceed $50,000,000;
47
(o) any extension, renewal or replacement of the foregoing, provided,
however, that the Liens permitted hereunder shall not be spread to cover any
additional Indebtedness or Property (other than a substitution of like
Property); and
(p) Liens on "margin stock" (as defined in the Margin Regulations), if and
to the extent that the value of such margin stock exceeds 25% of the total
assets of the Borrower and its Subsidiaries subject to this Section.
Notwithstanding the foregoing, nothing in this Section shall restrict the
ability of the Borrower or any of its Subsidiaries to sell or assign its
accounts receivable.
Section 5.06. Mergers and Sales of Assets. The Borrower will not, nor
will it permit any of its Subsidiaries to, merge or consolidate with or into, or
acquire all or substantially all of the assets of, any Person, except that (i)
any Subsidiary of the Borrower may merge or consolidate with or into, or
transfer assets to, or acquire assets of, any other Subsidiary of the Borrower,
(ii) any Subsidiary of the Borrower may merge or consolidate with or into, or
transfer assets to, the Borrower and (iii) the Borrower may merge with or
consolidate into, or acquire assets of, and any Subsidiary of the Borrower may
merge or consolidate with or into, or acquire assets of, any other Person,
provided in each case that, immediately after giving effect to such proposed
transaction, no Default would exist and in the case of any such proposed
transaction to which the Borrower is a party, the Borrower is the surviving
corporation. The Borrower will not, and will not permit any Subsidiary to,
consummate any Asset Sale unless (i) the aggregate book value of assets disposed
of subsequent to the date hereof pursuant to Asset Sales does not exceed the
greater of (x) $1,200,000,000 or (y) 30% of the total assets of the Borrower and
its Subsidiaries at such time and (ii such Asset Sale is for fair market value
(in the reasonable determination of the Borrower) and for consideration
consisting of at least 80% cash payable at the closing of such Asset Sale.
Section 5.07. Change in Nature of Business. The Borrower will not (i)
make any material change in the nature of the business of the Borrower and its
Subsidiaries taken as a whole as carried on as of the date hereof, or (ii)
except as contemplated by the Offer to Purchase, acquire, or permit any of its
Subsidiaries to acquire, businesses which result in any material change in the
nature of the business of the Borrower and its Subsidiaries taken as a whole as
carried on as of the date hereof; provided, however, that the Borrower or any of
its Subsidiaries may engage in or acquire a business of a nature substantially
related to the nature of its business as carried on as of the date hereof, and
provided, further, in each
48
case that, immediately after giving effect to such proposed transaction, no
Default would exist.
Section 5.08. Financial Covenants. (a) The Borrower will not permit the
ratio of (i) the sum of (x) Total Debt plus (y) the Operating Lease Amount at
any time to (ii) the sum of (x) Total Capital at such time plus (y) the
Operating Lease Amount at such time to exceed: (A) to but excluding the last day
of Fiscal Year 1999, 68%, (B) thereafter, to but excluding the last day of
Fiscal Year 2000, 63% and (C) thereafter, 60%.
(b) The Borrower will not permit the Interest Coverage Ratio at the last
day of any fiscal quarter to be less than (i) to but excluding the last day of
Fiscal Year 1999, 2.70, (ii thereafter, to but excluding the last day of Fiscal
Year 2000, 2.9 and (ii thereafter, 3.50; provided that this Section 5.08(b)
shall not apply at any date at which the Borrower's long-term debt is rated BBB+
or higher by S&P and Baal or higher by Xxxxx'x.
Section 5.09. Indebtedness of Subsidiaries. The Borrower will not permit
the aggregate Indebtedness of all of its Subsidiaries (exclusive of Indebtedness
owing to the Borrower or a Wholly-Owned Subsidiary) to exceed at any time 10% of
Total Capital.
Section 5.10. Transactions with Affiliates. Except as expressly permitted
by this Agreement, the Borrower will not, nor will it permit any of its
Subsidiaries to, directly or indirectly enter into transactions with any
Affiliates unless the monetary or business consideration arising therefrom would
be substantially as advantageous to the Borrower and its Subsidiaries as the
monetary or business consideration which would obtain in a comparable
transaction with a Person not an Affiliate.
Section 5.11. Use of Proceeds. The Borrower will use the proceeds of the
Loans hereunder solely for general corporate purposes (in compliance with all
applicable legal and regulatory requirements), including, without limitation, to
finance the Acquisition; provided that neither Agent nor any Lender shall have
any responsibility as to the use of any of such proceeds. No part of the
proceeds of any extension of credit hereunder will be used in violation of the
Margin Regulations.
Section 5.12. Environmental Laws. The Borrower will, and will cause each
of its Subsidiaries to, comply in all material respects with the requirements of
all applicable Environmental Laws and all ordinances and regulatory and
administrative authorities with respect thereto, and shall not permit or suffer
any
49
of its Subsidiaries to, generate, manufacture, refine, transport, treat, store,
handle, dispose, transfer, produce or process Hazardous Materials other than in
the ordinary course of business and in compliance in all material respects with
applicable Environmental Laws, and shall not, and shall not permit or suffer any
of its Subsidiaries to, cause or permit, as a result of any intentional or
unintentional act or omission on the part of the Borrower or any Subsidiary
thereof, the installation or placement of Hazardous Materials in violation of or
actionable under in any material respect applicable Environmental Laws onto any
of its Property or suffer the presence of Hazardous Materials in violation of or
actionable under in any material respect applicable Environmental Laws on any of
its Property. The Borrower shall, and shall cause each of its Subsidiaries to,
promptly undertake and diligently pursue to completion any remedial clean-up
action required of the Borrower or any Subsidiary under applicable Environmental
Laws in the event of any release of Hazardous Materials.
Section 5.13. Most Favored Lender. The Borrower will not and will not
permit any Subsidiary to (a) enter into any indenture, agreement or other
instrument under which any Indebtedness for borrowed money in excess of
$15,000,000 for any such indenture, agreement or instrument (or series of
related agreements or instruments) of the Borrower or of any Subsidiary may be
issued (a "RESTRICTED AGREEMENT"), or (b) agree to any amendment, waiver,
consent, modification, refunding, refinancing or replacement of any Restricted
Agreement, in either case, with terms the effect of which is to (i) include a
Covenant which imposes a restriction, limitation or obligation in favor of
another lender not imposed in favor of the Lenders by this Agreement, or (ii)
revise or alter any Covenant contained therein the effect of which is to impose
a restriction, limitation or obligation in favor of another lender not imposed
in favor of the Lenders by this Agreement, unless the Borrower or such
Subsidiary, as the case may be, concurrently (x) notifies the Lenders and the
Administrative Agent thereof and (y) incorporates herein such additional,
altered or revised Covenant. If the Administrative Agent at the time so elects
by notice to the Borrower and the Lenders, the incorporation of each such
additional Covenant shall be deemed to occur automatically without any further
action or the execution of any additional document by any of the parties to this
Agreement. If the Administrative Agent does not elect to effect such an
automatic incorporation, the Administrative Agent shall promptly tender to the
Borrower for execution by it an amendment (executed by the Administrative Agent)
incorporating such additional Covenant and shall promptly deliver a copy of such
amendment to the Lenders.
50
ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the following events
("EVENTS OF DEFAULT") shall have occurred and be continuing:
(a) The Borrower shall: (i) default in the payment of any principal of
any Loan when due (whether at stated maturity or at mandatory or optional
prepayment); or (ii default in the payment of any interest on any Loan, any fee
or any other amount payable by it hereunder when due and such default shall have
continued unremedied for five days; or
(b) The Borrower or any of its Subsidiaries shall default beyond any
applicable grace period, or, in the case of any Derivatives Obligations for
which no grace period is otherwise provided, beyond five days, in the payment
when due of any principal of or interest on any Indebtedness (other than the
Indebtedness hereunder or under the Notes) aggregating $15,000,000 or more, or
in the payment when due of amounts exceeding $15,000,000 in the aggregate for
the payment or collateralization of Derivatives Obligations; or any event
specified in any note, agreement, indenture or other document evidencing or
relating to any such Indebtedness or any event specified in any instrument or
agreement governing such Derivatives Obligations shall occur if the effect of
such event is (or, with the giving of notice or the passage of time or both,
would be) to cause, or to permit the holder or holders of such Indebtedness (or
a trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to become due, or to be prepaid in full (whether by redemption,
purchase, offer to purchase or otherwise), prior to its stated maturity or to
have the interest rate thereon reset to a level so that securities evidencing
such Indebtedness trade at a level specified in relation to the par value
thereof or, in the case of an instrument or agreement governing such Derivatives
Obligations, to permit the payments owing under such instrument or agreement to
be liquidated; or
(c) Any representation, warranty or certification made or deemed made
herein (or in any modification or supplement hereto) by the Borrower, or any
certificate furnished to any Lender or the Administrative Agent pursuant to the
provisions hereof, shall prove to have been false or misleading as of the time
made or furnished in any material respect; or
(d) The Borrower shall default in the performance of any of its obligations
under any of Sections 5.01(f), 5.05 through 5.09 (inclusive), or 5.13 hereof; or
the Borrower shall default in the performance of any of its other obligations in
this Agreement and such default shall continue unremedied for a
51
period of 30 days after notice thereof to the Borrower by the Administrative
Agent at the request of any Lender; or
(e) The Borrower or any of its Subsidiaries shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become due;
or
(f) The Borrower or any of its Subsidiaries shall (i) apply for or consent
to the appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner or liquidator of itself or of all or a substantial part of its
Property, (ii) make a general assignment for the benefit of its creditors, (iii)
commence a voluntary case under the Bankruptcy Code, (iv) file a petition
seeking to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, liquidation, dissolution, arrangement or winding-up, or
composition or readjustment of debts, (v) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it in
an involuntary case under the Bankruptcy Code or (vi) take any corporate action
for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application or
consent of the Borrower or any of its Subsidiaries, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its debts, (ii)
the appointment of a receiver, custodian, trustee, examiner, liquidator or the
like of the Borrower or such Subsidiary or of all or any substantial part of its
Property, or (iii) similar relief in respect of the Borrower or such Subsidiary
under any law relating to bankruptcy, insolvency, reorganization, winding-up, or
composition or adjustment of debts, and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing shall be entered and continue unstayed and in effect, for a period of
60 or more days; or an order for relief against the Borrower or such Subsidiary
shall be entered in an involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in excess of
$15,000,000 in the aggregate shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against the
Borrower or any of its Subsidiaries and the same shall not be discharged (or
provision shall not be made for such discharge), or a stay of execution thereof
shall not be procured, within 30 days from the date of entry thereof and the
Borrower or the relevant Subsidiary shall not, within said period of 30 days, or
such longer period during which execution of the same shall have been stayed,
appeal therefrom and cause the execution thereof to be stayed during such
appeal; or
52
(i) An event or condition specified in Section 5.01(e) hereof shall occur
or exist with respect to any Plan or Multiemployer Plan and, as a result of such
event or condition, together with all other such events or conditions, the
Borrower or any ERISA Affiliate shall incur or in the opinion of the Required
Lenders shall be reasonably likely to incur a liability to a Plan, a
Multiemployer Plan or PBGC (or any combination of the foregoing) which would
constitute, in the determination of the Required Lenders, a Material Adverse
Effect; or
(j) Any Person or two or more Persons acting in concert shall have
acquired, in one transaction or in a series of related transactions, beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly,
of securities of the Borrower (or other securities convertible into such
securities) representing 40% or more of the combined voting power of the
Borrower's then outstanding securities entitled to vote in the election of
directors (other than securities having such power only by reason of the
happening of a contingency);
THEREUPON: (1) in the case of an Event of Default other than one referred
to in clause (f) or (g) of this Section 6.01 with respect to the Borrower, (A)
the Administrative Agent, upon request of the Lenders having at least 51% of the
aggregate amount of the Commitments, shall, by notice to the Borrower, terminate
the Commitments and they shall thereupon terminate, and (B) the Administrative
Agent, upon request of Lenders holding at least 51% of the aggregate unpaid
principal amount of the Loans, shall, by notice to the Borrower, declare the
principal amount then outstanding of, and the accrued interest on, the Loans and
all other amounts payable by the Borrower hereunder and under the Notes to be
forthwith due and payable, whereupon such amounts shall be immediately due and
payable without presentment, demand, protest or other formalities of any kind,
all of which are hereby expressly waived by the Borrower; and (2) in the case of
the occurrence of an Event of Default referred to in clause (f) or (g) of this
Section 6.01 with respect to the Borrower, the Commitments shall automatically
be terminated and the principal amount then outstanding of, and the accrued
interest on, the Loans and all other amounts payable by the Borrower hereunder
and under the Notes shall automatically become immediately due and payable
without presentment, demand, protest or other formalities of any kind, all of
which are hereby expressly waived by the Borrower.
Section 6.02. Notice of Default. The Administrative Agent shall give notice
to the Borrower under Section 6.01(d) promptly upon being requested to do so by
any Lender and shall thereupon notify all the Lenders thereof.
53
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Lender irrevocably
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under this
Agreement and the Notes as are delegated to Administrative Agent by the terms
hereof or thereof, together with all such powers as are reasonably incidental
thereto.
Section 7.02. Agent and Affiliates. Xxxxxx Guaranty Trust Company of New
York, Xxxxxxx Sachs Credit Partners L.P. and Citibank, N.A. shall each have the
same rights and powers under this Agreement as any other Lender and may exercise
or refrain from exercising the same as though it were not an Agent, and Xxxxxx
Guaranty Trust Company of New York, Xxxxxxx Sachs Credit Partners L.P. and
Citibank, N.A. and their respective affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it were not an Agent hereunder.
Section 7.03. Action by Agent. The obligations of each Agent hereunder are
only those expressly set forth herein. Without limiting the generality of the
foregoing, no Agent shall not be required to take any action with respect to any
Default, except as expressly provided in Article 6.
Section 7.04. Consultation with Experts. Each Agent may consult with legal
counsel (who may be counsel for the Borrower), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts.
Section 7.05. Liability of Agent. No Agent nor any of its affiliates nor
any of their respective directors, officers, agents or employees of the
foregoing shall be liable for any action taken or not taken by it in connection
herewith (i) with the consent or at the request of the Required Lenders or (ii)
in the absence of its own gross negligence or willful misconduct. No Agent nor
any of the affiliates nor any of the respective directors, officers, agents or
employees of the foregoing shall be responsible for or have any duty to
ascertain, inquire into or verify (i) any statement, warranty or representation
made in connection with this Agreement or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of the Borrower;
(iii) the satisfaction of any condition specified in Article 3, except in the
case of the Administrative Agent receipt of
54
items required to be delivered to such Agent; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. No Agent shall incur any
liability by acting in reliance upon any notice, consent, certificate,
statement, or other writing (which may be a bank wire, telex, facsimile
transmission or similar writing) believed by it to be genuine or to be signed by
the proper party or parties.
Section 7.06. Indemnification. Each Lender shall, ratably in accordance
with its Commitment, indemnify each Agent, its affiliates and the respective
directors, officers, agents and employees of the foregoing (to the extent not
reimbursed by the Borrower) against any cost, expense (including counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
Section 7.07. Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon either Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon either Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under this Agreement.
Section 7.08. Successor Administrative Agent. The Administrative Agent
may resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Administrative Agent reasonably acceptable to the Borrower. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized or licensed
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $50,000,000. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent the provisions of this
Article shall inure to its
55
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent.
Section 7.09. Documentation Agent and Syndication Agent. Nothing in this
Agreement shall impose upon the Documentation Agent or the Syndication Agent, in
their respective capacities as such, any duty or obligation whatsoever.
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period for any CD Loan, Euro-Dollar
Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Reference Lenders that
deposits in dollars (in the applicable amounts) are not being offered to the
Reference Lenders in the relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Lenders having 50% or
more of the aggregate principal amount of the affected Loans advise the
Administrative Agent that the Adjusted CD Rate or the London Interbank Offered
Rate, as the case may be, as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Lenders of funding their CD Loans
or Euro-Dollar Loans, as the case may be, for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
(i) the obligations of the Lenders to make CD Loans or Euro-Dollar Loans, as the
case may be, or to continue or convert outstanding Loans as or into CD Loans or
Euro-Dollar Loans, as the case may be, shall be suspended and (ii) each
outstanding CD Loan or Euro-Dollar Loan, as the case may be, shall be converted
into a Base Rate Loan on the last day of the then current Interest Period
applicable thereto. Unless the Borrower notifies the Administrative Agent at
least two Domestic Business Days before the date of any Fixed Rate Borrowing for
which a Notice of Borrowing has previously been given that it elects not to
borrow on such date, (i) if such Fixed Rate Borrowing is a Committed Borrowing,
such Borrowing shall instead be made as a Base Rate Borrowing and (ii) if such
Fixed Rate Borrowing is a Money Market LIBOR Borrowing, the Money Market LIBOR
Loans comprising such Borrowing shall bear interest for each day from and
including the
56
first day to but excluding the last day of the Interest Period applicable
thereto at the Base Rate for such day.
Section 8.02. Illegality. If, on or after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Lender (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until such Lender notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Lender to make Euro-Dollar Loans, or to convert outstanding
Loans into Euro-Dollar Loans, shall be suspended. Before giving any notice to
the Administrative Agent pursuant to this Section, such Lender shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender. If such notice is given, each Euro-Dollar Loan
of such Lender then outstanding shall be converted to a Base Rate Loan either
(a) on the last day of the then current Interest Period applicable to such Euro-
Dollar Loan if such Lender may lawfully continue to maintain and fund such Loan
to such day or (b) immediately if such Lender shall determine that it may not
lawfully continue to maintain and fund such Loan to such day.
Section 8.03. Increased Cost and Reduced Return. (a) If on or after (x)
the date hereof, in the case of any Committed Loan or any obligation to make
Committed Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
(i) with respect to any CD Loan any such requirement included in an applicable
Domestic Reserve Percentage and (ii) with respect to any Euro-Dollar Loan any
such
57
requirement with respect to which such Lender is entitled to compensation during
the relevant Interest Period under Section 2.16), special deposit, insurance
assessment (excluding, with respect to any CD Loan, any such requirement
reflected in an applicable Assessment Rate) or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender (or its Applicable Lending Office) or shall impose on any Lender (or its
Applicable Lending Office) or on the United States market for certificates of
deposit or the London interbank market any other condition affecting its Fixed
Rate Loans, its Note or its obligation to make Fixed Rate Loans and the result
of any of the foregoing is to increase the cost to such Lender (or its
Applicable Lending Office) of making or maintaining any Fixed Rate Loan, or to
reduce the amount of any sum received or receivable by such Lender (or its
Applicable Lending Office) under this Agreement or under its Note with respect
thereto, by an amount deemed by such Lender to be material, then, within 15 days
after demand by such Lender (with a copy to the Administrative Agent), the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Lender (or its Parent) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Lender to be material, then from time to time, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender (or its Parent) for such reduction.
(c) Each Lender will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this Section but in
any event within 45 days, after such Lender obtains actual knowledge thereof;
provided that (i) if any Lender fails to give such notice within 45 days after
it obtains actual knowledge of such an event, such Lender shall, with respect to
compensation payable pursuant to this Section 8.03 in respect of any
58
costs resulting from such event, only be entitled to payment under this Section
8.03 for costs incurred from and after the date 45 days prior to the date that
such Lender does give such notice and (ii) each Lender will designate a
different Applicable Lending Office if such designation will avoid the need for,
or reduce the amount of, such compensation and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. A certificate of any Lender
claiming compensation under this Section and setting forth in reasonable detail
the additional amount or amounts to be paid to it hereunder shall be conclusive
in the absence of manifest error. In determining such amount, such Lender shall
use reasonable averaging and attribution methods.
Section 8.04. Taxes. (a) For the purposes of this Section 8.04, the
following terms have the following meanings:
"TAXES" means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings with respect to any payment by the Borrower
pursuant to this Agreement or under any Note, and all liabilities with respect
thereto, excluding (i) in the case of each Lender and the Agent, taxes imposed
on its income, and franchise or similar taxes imposed on it, by a jurisdiction
under the laws of which such Lender or such Agent (as the case may be) is
organized or in which its principal executive office is located or, in the case
of each Lender, in which its Applicable Lending Office is located and (ii) in
the case of each Lender, any United States withholding tax imposed on such
payments but only to the extent that such Lender is subject to United States
withholding tax at the time such Lender first becomes a party to this Agreement.
"OTHER TAXES" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note.
(b) Any and all payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 8.04) such Lender or such Agent (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or
59
other authority in accordance with applicable law and (iv) the Borrower shall
furnish to the Administrative Agent, at its address referred to in Section 9.01,
the original or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Lender and each Agent for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Lender or such Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. This indemnification shall be paid within 15 days after
such Lender or the Agent (as the case may be) makes demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Lender is entitled to benefits under an income tax treaty to which the
United States is a party which exempts the Lender from United States withholding
tax or reduces the rate of withholding tax on payments of interest for the
account of such Lender or certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States.
(e) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which such form originally was required to be provided), such Lender
shall not be entitled to indemnification under Section 8.04(b) or (c) with
respect to Taxes imposed by the United States; provided that if a Lender, which
is otherwise exempt from or subject to a reduced rate of withholding tax,
becomes subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 8.04, then such Lender will
change the jurisdiction of its Applicable Lending Office if, in the judgment of
such Lender, such change (i) will eliminate or reduce any such additional
payment
60
which may thereafter accrue and (ii) is not otherwise disadvantageous to such
Lender.
Section 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans.
If (i) the obligation of any Lender to make, or convert outstanding Loans to,
Euro-Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Lender
has demanded compensation under Section 8.03 or 8.04 with respect to its CD
Loans or Euro-Dollar Loans and the Borrower shall, by at least five Euro-Dollar
Business Days' prior notice to such Lender through the Administrative Agent,
have elected that the provisions of this Section shall apply to such Lender,
then, unless and until such Lender notifies the Borrower that the circumstances
giving rise to such suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by such Lender as (or
continued as or converted into) CD Loans or Euro-Dollar Loans, as the case may
be, shall instead be Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related Fixed Rate Loans of the other
Lenders); and
(b) after each of its CD Loans or Euro-Dollar Loans, as the case may be,
has been repaid (or converted to a Base Rate Loan), all payments of principal
which would otherwise be applied to repay such Fixed Rate Loans shall be applied
to repay its Base Rate Loans instead.
If such Lender notifies the Borrower that the circumstances giving rise to
such notice no longer apply, the principal amount of each such Base Rate Loan
shall be converted into a CD Loan or Euro-Dollar Loan, as the case may be, on
the first day of the next succeeding Interest Period applicable to the related
CD Loans or Euro-Dollar Loans of the other Lenders.
Section 8.06. Substitution of Lender. Provided that no Default shall have
occurred and be continuing, if (i) the obligation of any Lender to make Euro-
Dollar Loans has been suspended pursuant to Section 8.02 or (ii) any Lender has
demanded compensation under Section 8.03 or 8.04 the Borrower shall have the
right to designate an Assignee which is not an Affiliate to purchase for cash,
pursuant to an Assignment and Assumption Agreement substantially in the form of
Exhibit G hereto, the outstanding Loans and Commitment(s) of such Lender and to
assume all of such Lender's other rights and obligations hereunder without
recourse to or warranty by such Lender, for a purchase price equal to the
principal amount of all of such Lender's outstanding Loans plus any accrued but
unpaid interest thereon and the accrued but unpaid facility fees in respect of
any Lender's
61
Commitment(s) hereunder plus such amount, if any, as would be payable pursuant
to Section 2.14 if the outstanding Loans of such Lender were prepaid in their
entirety on the date of consummation of such assignment, plus the compensation
then due and payable pursuant to Sections 8.03 and 8.04.
ARTICLE 9
Miscellaneous
Section 9.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower or any Agent, at its address, facsimile number or telex
number set forth on the signature pages hereof, (y) in the case of any Lender,
at its address, facsimile number or telex number set forth in its Administrative
Questionnaire or (z) in the case of any party, such other address, facsimile
number or telex number as such party may hereafter specify for the purpose by
notice to the Administrative Agent and the Borrower. Each such notice, request
or other communication shall be effective (i) if given by telex, when such telex
is transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
Administrative Agent under Article 2 or Article 8 shall not be effective until
received.
Section 9.02. No Waivers. No failure or delay by any Agent or Lender in
exercising any right, power or privilege hereunder or under any Note shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i)
all out-of-pocket expenses of each Agent, including fees and disbursements of
special counsel for the Agents, in connection with the preparation and
administration of this Agreement, any waiver or consent hereunder or any
amendment hereof or any Default or alleged Default hereunder and (ii) if an
Event of Default occurs and is continuing, all out-of-pocket expenses incurred
by each
62
Agent and each Lender, including (without duplication) the fees and
disbursements of outside counsel and the allocated cost of inside counsel, in
connection with collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Agent and each Lender, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "INDEMNITEE") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel and settlement costs, which may be incurred by such
Indemnitee in connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a party thereto)
brought or threatened relating to or arising out of this Agreement or any actual
or proposed use of proceeds of Loans hereunder; provided that no Indemnitee
shall have the right to be indemnified hereunder for such Indemnitee's own gross
negligence or willful misconduct as determined by a court of competent
jurisdiction.
Section 9.04. Sharing of Set-offs. Each Lender agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of
a proportion of the aggregate amount of principal and interest due with respect
to any Note held by it which is greater than the proportion received by any
other Lender in respect of the aggregate amount of principal and interest due
with respect to any Note held by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Lenders, and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Notes held by the Lenders shall be shared by the Lenders pro rata; provided that
nothing in this Section shall impair the right of any Lender to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness hereunder. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Note, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
Section 9.05. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Lenders (and, if the
rights or duties of any Agent are affected thereby,
63
by such Agent); provided that no such amendment or waiver shall, unless signed
by all the Lenders, (i) increase or decrease the Commitment of any Lender
(except for a ratable decrease in the Commitments of all Lenders) or subject any
Lender to any additional obligation, (ii reduce the principal of or rate of
interest on any Loan, or any fees hereunder (ii postpone the date fixed for any
payment of principal of or interest on any Loan, or any fees hereunder or for
termination of any Commitment or (iv change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes, or the number of Lenders,
which shall be required for the Lenders or any of them to take any action under
this Section or any other provision of this Agreement; and provided further
that, at the option of the Administrative Agent, an additional, altered or
revised Covenant shall be incorporated herein pursuant to Section 5.13 either
(i) automatically or (ii) by an amendment signed solely by the Administrative
Agent and the Borrower.
Section 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of all Lenders.
(b) Any Lender may at any time grant to one or more banks or other
institutions (each a "PARTICIPANT") participating interests in any or all of its
Commitments or Loans. In the event of any such grant by a Lender of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Administrative Agent, such Lender shall remain responsible for
the performance of its obligations hereunder, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement.
Any agreement pursuant to which any Lender may grant such a participating
interest shall provide that such Lender shall retain the sole right and
responsibility to enforce the obligations of the Borrower hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such participation agreement
may provide that such Lender will not agree to any modification, amendment or
waiver of this Agreement described in clause (i), (ii or (iii) of Section 9.05
without the consent of the Participant. The Borrower agrees that each
Participant shall, to the extent provided in its participation agreement, be
entitled to the benefits of Section 2.16 and Article 8 with respect to its
participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) below shall be given effect for purposes of this
Agreement only to the extent of a participating interest granted in accordance
with this subsection (b).
64
(c) Any Lender may at any time assign to one or more banks or other
institutions (each an "ASSIGNEE") all, or a proportionate part (equivalent to an
Exposure of not less than $10,000,000, unless a lower amount is agreed to by the
Borrower and the Administrative Agent) of all, of its rights and obligations
under this Agreement and the Notes, and such Assignee shall assume such rights
and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit G hereto executed by such Assignee and such
transferor Lender, with (and subject to) the subscribed consent of the Borrower,
which shall not be unreasonably withheld, and the Administrative Agent; provided
that if an Assignee is an affiliate of such transferor Lender, no such consent
shall be required; and provided further that such assignment may, but need not,
include rights of the transferor Lender in respect of outstanding Money Market
Loans. Upon execution and delivery of such instrument and payment by such
Assignee to such transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, such Assignee shall be
a Lender party to this Agreement and shall have all the rights and obligations
of a Lender with Commitment(s) and Loans as set forth in such instrument of
assumption, and the transferor Lender shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to
this subsection (c), the transferor Lender, the Administrative Agent and the
Borrower shall make appropriate arrangements so that, if required, a new Note is
issued to the Assignee. In connection with any such assignment, the transferor
Lender shall pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of $2,500. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Administrative Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.04.
(d) Any Lender may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Lender's rights
shall be entitled to receive any greater payment under Section 8.03 or 8.04 than
such Lender would have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's prior written
consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring
such Lender to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such greater
payment did not exist.
65
Section 9.07. Collateral. Each of the Lenders represents to each of the
Agents and each of the other Lenders that it in good faith is not relying upon
any "MARGIN STOCK" (as defined in the Margin Regulations) as collateral in the
extension or maintenance of the credit provided for in this Agreement.
Section 9.08. Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by and construed in accordance with the laws of
the State of New York. The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Southern District of
New York and of any New York State court sitting in New York City for purposes
of all legal proceedings arising out of or relating to this Agreement or the
transactions contemplated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such proceeding brought in such a court
and any claim that any such proceeding brought in such a court has been brought
in an inconvenient forum.
Section 9.09. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof;
provided that the obligations of the Borrower under the Commitment Letter, the
Joint Fee Letter and the Administrative Agency Fee Letter agreement, each dated
July 21, 1997, among the initial parties to this Agreement shall remain in
effect in accordance with their terms.
This Agreement shall become effective upon receipt by the Administrative
Agent of counterparts hereof signed by each of the parties hereto (or, in the
case of any party as to which an executed counterpart shall not have been
received, receipt by the Administrative Agent in form satisfactory to it of
telegraphic, telex, facsimile or other written confirmation from such party of
execution of a counterpart hereof by such party).
SECTION 9.10. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS AND
THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
66
Section 9.11. Confidentiality. The Agents and each Lender agree to keep
any information delivered or made available by the Borrower pursuant to this
Agreement confidential from anyone other than persons employed or retained by it
who are engaged in evaluating, approving, structuring or administering the
credit facility contemplated hereby; provided that nothing herein shall prevent
any Lender from disclosing such information (a) to any other Lender or to an
Agent, (b) to any other Person if reasonably incidental to the administration of
the credit facility contemplated hereby, (c) upon the order of any court or
administrative agency, (d) upon the request or demand of any regulatory agency
or authority, (e) which had been publicly disclosed other than as a result of a
disclosure by an Agent or Lender prohibited by this Agreement, (f) in connection
with any litigation to which an Agent or Lender or its subsidiaries or Parent
may be a party, (g) to the extent necessary in connection with the exercise of
any remedy hereunder, (h) to such Lender's or the Agents' legal counsel and
independent auditors and (i) subject to provisions substantially similar to
those contained in this Section, to any actual or proposed Participant or
Assignee.
67
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MALLINCKRODT INC.
By: /s/ X. X. XxXxxxxx
----------------------------------------
Title: Treasurer
Address: 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By
-----------------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By
-----------------------------------------
Name:
Title:
CITIBANK, N.A.
By
-----------------------------------------
Name:
Title:
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MALLINCKRODT INC.
By: _________________________________________
Title:
Address: 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Associate
XXXXXXX SACHS CREDIT PARTNERS L.P.
By
-----------------------------------------
Name:
Title:
CITIBANK, N.A.
By
-----------------------------------------
Name:
Title:
69
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MALLINCKRODT INC.
By:
----------------------------------------
Title:
Address: 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By
-----------------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
CITIBANK, N.A.
By
-----------------------------------------
Name:
Title:
70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
MALLINCKRODT INC.
By:
----------------------------------------
Title:
Address: 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By
-----------------------------------------
Name:
Title:
XXXXXXX SACHS CREDIT PARTNERS L.P.
By
-----------------------------------------
Name:
Title:
CITIBANK, N.A.
By /s/ X. Xxxxxxxx
-----------------------------------------
Name: X. Xxxxxxxx
Title: Attorney-in-Fact
71
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Associate
Address: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telex Number: 177615 MGT UT
Facsimile number: (000) 000-0000
XXXXXXX SACHS CREDIT PARTNERS L.P.
as Syndication Agent
By
-----------------------------------------
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telex Number:
Facsimile number: (000) 000-0000
CITIBANK, N.A.
as Documentation Agent
By
-----------------------------------------
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile number: (000) 000-0000
72
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
-----------------------------------------
Name:
Title:
Address: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telex Number: 177615 MGT UT
Facsimile number: (000) 000-0000
XXXXXXX SACHS CREDIT PARTNERS L.P.
as Syndication Agent
By /s/ Xxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Authorized Signatory
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telex Number:
Facsimile number: (000) 000-0000
CITIBANK, N.A.
as Documentation Agent
By
-----------------------------------------
Name:
Title:
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile number: (000) 000-0000
73
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK, as Administrative Agent
By
-----------------------------------------
Name:
Title:
Address: 00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telex Number: 177615 MGT UT
Facsimile number: (000) 000-0000
XXXXXXX SACHS CREDIT PARTNERS L.P.
as Syndication Agent
By
-----------------------------------------
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telex Number:
Facsimile number: (000) 000-0000
CITIBANK, N.A.
as Documentation Agent
By /s/ X. Xxxxxxxx
-----------------------------------------
Name: X. Xxxxxxxx
Title: Attorney-in-Fact
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile number: (000) 000-0000
74
PRICING SCHEDULE
Each of "CD MARGIN", "EURO-DOLLAR MARGIN" and "FACILITY FEE RATE" means,
for any day, the rates set forth below (in basis points per annum) in the row
opposite such term and in the column corresponding to the "PRICING LEVEL" that
exists on such day:
Level I Level II Level III Xxxxx XX Xxxxx X Xxxxx XX Xxxxx XXX Level VIII
------------------------------------------------------------------------------------------------
CD Margin 30.00 31.00 34.00 36.25 42.50 50.00 62.50 87.50
------------------------------------------------------------------------------------------------
Euro-Dollar
Margin 17.50 18.50 21.50 23.75 30.00 37.50 50.00 75.00
------------------------------------------------------------------------------------------------
Facility Fee 7.50 9.00 11.00 13.75 15.00 22.50 25.00 25.00
Rate
------------------------------------------------------------------------------------------------
For purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"LEVEL I PRICING" applies at any date if, at such date, (i) the Borrower's
long-term debt is rated A- or higher by S&P or A3 or higher by Xxxxx'x.
"LEVEL II PRICING" applies at any date if, at such date, (i) the Borrower's
long-term debt is rated BBB+ or higher by S&P or Baa1 or higher by Xxxxx'x and
(ii) Level I Pricing does not apply.
"LEVEL III PRICING" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated BBB or higher by S&P or Baa2 or higher by
Xxxxx'x and (ii) neither Level I Pricing nor Level II Pricing applies.
"LEVEL IV PRICING" applies at any date if, at such date, (i) the Borrower's
long-term debt is rated BBB- or higher by S&P and Baa3 or higher by Xxxxx'x and
(ii) none of Level I Pricing, Level II Pricing and Level III Pricing applies.
"LEVEL V PRICING" applies at any date if, at such date, (i) the Borrower's
long-term debt is rated BBB- or higher by S&P or Baa3 or higher by Xxxxx'x and
(ii) none of Level I Pricing, Level II Pricing, Level III Pricing and Level IV
Pricing applies.
"LEVEL VI PRICING" applies at any date if, at such date, (i) the Borrower's
long-term debt is rated BB+ or higher by S&P and Ba1 or higher by Xxxxx'x,
75
and (ii) none of Level I Pricing, Level II Pricing, Level III Pricing, Level IV
Pricing and Level V Pricing applies.
"LEVEL VII PRICING" applies at any date if, at such date, (i) the
Borrower's long-term debt is rated BB+ or higher by S&P or Ba1 or higher by
Xxxxx'x and (ii) none of Level I Pricing, Level II Pricing, Level III Pricing,
Level IV Pricing, Level V Pricing and Level VI Pricing applies.
"LEVEL VIII PRICING" applies at any date if, at such date, no other Pricing
Level applies.
"PRICING LEVEL" refers to the determination of which of Xxxxx X, Xxxxx XX,
Xxxxx XXX, Level IV, Level V, Level VI, Level VII or Level VIII applies at any
date.
The credit ratings to be utilized for purposes of this Schedule are those
assigned to the senior unsecured long-term debt securities of the Borrower
without third-party credit enhancement, and any rating assigned to any other
debt security of the Borrower shall be disregarded. The rating in effect at any
date is that in effect at the close of business on such date; provided that
prior to the first date subsequent to the Acquisition (and after giving effect
thereto) on which the senior unsecured long-term debt securities of the Borrower
are rated, the Pricing Level shall be Level V.
76
COMMITMENT SCHEDULE
Lender Term Loan Commitment Revolving Credit
Commitment
---------------------------------------------------------------
Xxxxxx Guaranty Trust $160,000,000 $ 640,000,000
Company of New York
---------------------------------------------------------------
Xxxxxxx Xxxxx Credit $120,000,000 $ 480,000,000
Partners L.P.
---------------------------------------------------------------
Citibank, N.A. $120,000,000 $ 480,000,000
---------------------------------------------------------------
Totals $400,000,000 $1,600,000,000
---------------------------------------------------------------
77
EXHIBIT A - Note
NOTE
New York, New York
________ __, ____
For value received, Mallinckrodt Inc., a New York corporation (the
"BORROWER"), promises to pay to the order of _________________________ (the
"LENDER"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to the
Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of Xxxxxx Guaranty Trust Company of New York, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx.
All Loans made by the Lender, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Lender and,
if the Lender so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Lender on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the $2,000,000,000 Credit
Agreement dated as of July 23, 1997 among the Borrower, the Lenders party
thereto from time to time, and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent, Xxxxxxx Xxxxx Credit Partners L.P., as Syndication Agent,
and Citibank, N.A., as Documentation Agent (as the same may be amended from time
to time, the "CREDIT AGREEMENT"). Terms defined in the Credit Agreement are
used herein with the same meanings. Reference is made to the Credit Agreement
for provisions for the prepayment hereof and the acceleration of the maturity
hereof.
A-1
MALLINCKRODT INC.
By
----------------------------------
Name:
Title:
A-2
LOANS AND PAYMENTS OF PRINCIPAL
Amount Amount of
of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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A-3
EXHIBIT B - Money Market Quote Request
Form of Money Market Quote Request
----------------------------------
[Date]
To: Xxxxxx Guaranty Trust Company of New York
From: Mallinckrodt Inc.
Re: $2,000,000,000 Credit Agreement (the "CREDIT AGREEMENT") dated as of
July 23, 1997 among Mallinckrodt Inc., the Lenders party thereto from
time to time, Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent, Xxxxxxx Sachs Credit Partners L.P., as
Syndication Agent, and Citibank, N.A., as Documentation Agent.
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount/1/ Interest Period/2/
---------------- ---------------
$
--------------------
/1/ Amount must be $10,000,000 or a larger multiple of $1,000,000.
/2/ Not less than one month (LIBOR Auction) or not less than 7 days (Absolute
Rate Auction), subject to the provisions of the definition of Interest
Period.
B-1
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Terms used herein have the meanings assigned to them in the Credit
Agreement.
MALLINCKRODT INC.
By
------------------------------------
Name:
Title:
B-2
EXHIBIT C - Invitation for Money Market Quotes
Form of Invitation for Money Market Quotes
------------------------------------------
To: [Name of Lender]
Re: Invitation for Money Market Quotes to Mallinckrodt Inc. (the "BORROWER")
Pursuant to Section 2.03 of the $2,000,000,000 Credit Agreement dated
as of July 23, 1997 among Mallinckrodt Inc., the Lenders party thereto from time
to time, Xxxxxxx Xxxxx Credit Partners L.P., as Syndication Agent, Citibank,
N.A., as Documentation Agent, and the undersigned, as Administrative Agent, we
are pleased on behalf of the Borrower to invite you to submit Money Market
Quotes to the Borrower for the following proposed Money Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30
A.M.] (New York City time) on [date].
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By
------------------------------------
Authorized Officer
C-1
EXHIBIT D - Money Market Quote
Form of Money Market Quote
--------------------------
To: Xxxxxx Guaranty Trust Company of New York, as Administrative Agent
Re: Money Market Quote to Mallinckrodt Inc. (the "BORROWER")
In response to your invitation on behalf of the Borrower dated
_____________, ____, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Lender: ________________________________
2. Person to contact at Quoting Lender:
_____________________________
3. Date of Borrowing: ____________________/*/
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
------------------
/*/ As specified in the related Invitation.
D-1
Principal Interest Money Market
Amount/**/ Period/***/ [Margin/****/] [Absolute Rate/*****/]
---------- ----------- -------------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed $____________.]**
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the $2,000,000,000
Credit Agreement dated as of July 23, 1997 among Mallinckrodt Inc., the Lenders
party thereto from time to time, Xxxxxxx Sachs Credit Partners L.P., as
Syndication Agent, Citibank, N.A., as Documentation Agent, and yourselves, as
Administrative Agent, irrevocably obligates us to make the Money Market Loan(s)
for which any offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
-------------
/2/ Principal amount bid for each Interest Period may not exceed principal
amount requested. Specify aggregate limitation if the sum of the individual
offers exceeds the amount the Lender is willing to lend. Bids must be made for
$5,000,000 or a larger multiple of $1,000,000.
/3/ Not less than one month or not less than 7 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
/4/ Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000 of 1%)
and specify whether "PLUS" or "MINUS".
/5/ Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
D-2
EXHIBIT E - Opinion of Counsel for the Borrower
[Closing Date]
Each of the Lenders and each of the Agents party
to the Credit Agreement referred to below
c/x Xxxxxx Guaranty Trust Company
of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
I am the General Counsel of Mallinckrodt Inc., a corporation organized
under the laws of the State of New York (the "BORROWER") and I am furnishing
this opinion in connection with the Credit Agreement dated as of July 23, 1997
(the "CREDIT AGREEMENT") among the Borrower, the Lenders party thereto from time
to time, Xxxxxxx Sachs Credit Partners, as Syndication Agent, Citibank, N.A., as
Documentation Agent, and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent, providing for, among other things, the making of loans by
the Lenders in an aggregate principal amount not exceeding $2,000,000,000. All
capitalized terms used but not defined herein have the respective meanings given
to such terms in the Credit Agreement.
In rendering the opinions expressed below, I have examined:
(i) the Credit Agreement;
(ii) the Notes (collectively with the Credit Agreement, the "CREDIT
DOCUMENTS"); and
(iii) such corporate records, agreements and instruments of the
Borrower and such other documents and records as I have deemed necessary as a
basis for the opinions expressed below.
In my examination, I have assumed the genuineness of all signatures (except
those of officers of the Borrower), the authenticity of all documents submitted
to me as originals and the conformity with authentic original documents of all
documents submitted to me as copies. When relevant facts were not independently
E-1
established, I have relied upon representations made in or pursuant to the
Credit Documents and certificates of appropriate representatives of the
Borrower.
In rendering the opinions expressed below, I have assumed, with
respect to all of the documents referred to in this opinion letter, that
(except, to the extent set forth in the opinions expressed below, as to the
Borrower):
(i) such documents have been duly authorized by, have been duly
executed and delivered by, and constitute legal, valid, binding and
enforceable obligations of, all of the parties to such documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and
validly existing and have the power and authority (corporate or other) to
execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as I have deemed necessary as a basis for the opinions
expressed below, I am of the opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of the State of New York.
2. The Borrower has all requisite corporate power to execute and
deliver, and to perform its obligations under, each Credit Document and has
all requisite corporate power to borrow under the Credit Agreement.
3. The execution, delivery and performance by the Borrower of the
Credit Documents and the borrowings by the Borrower under the Credit
Agreement have been duly authorized by all necessary corporate action on
the part of the Borrower.
4. Each Credit Document has been duly executed and delivered by the
Borrower.
E-2
5. Neither the execution, delivery nor performance by the Borrower of
the Credit Documents nor the application of any proceeds of any Loans to
the acquisition by the Borrower or any of its Subsidiaries of any shares of
common stock of Target pursuant to the Offer to Purchase will contravene
any provision of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System as in effect on the date hereof.
6. Under Missouri conflict of laws principles, the stated choice of
New York Law to govern the Credit Documents will be honored by the courts
of the State of Missouri and the Credit Documents will be construed in
accordance with, and will be treated as being governed by, the law of the
State of New York. However, if the Credit Documents were stated to be
governed by and construed in accordance with the law of the State of
Missouri, or if a court were to apply the law of the State of Missouri to
the Credit Documents, each Credit Document (assuming, in the case of the
Notes, execution and delivery thereof for value) would constitute the
legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and except as
the enforceability of the Credit Documents is subject to the application of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (b) concepts of materiality, reasonableness,
good faith and fair dealing.
7. No authorization, approval or consent of, and no filing or
registration with, any governmental or regulatory authority or agency is
required on the part of the Borrower for the execution, delivery or
performance by the Borrower of, or for the legality, validity or
enforceability of, the Credit Documents or for any borrowing by the
Borrower under the Credit Agreement.
8. The execution, delivery and performance by the Borrower of the
Credit Documents, and borrowings by the Borrower under the Credit
Agreement, do not and will not (a) violate any provision of the charter or
by-laws of the Borrower, (b) violate any applicable law, rule or
regulation, (c) violate any order, writ, injunction or decree of any court
or governmental authority or agency or any arbitral award applicable to the
Borrower of which I have knowledge (after due inquiry) or (d) result in a
breach of, constitute a default under, require any consent under, or result
E-3
in the acceleration or required prepayment of any indebtedness pursuant to
the terms of, any agreement or instrument of which I have knowledge (after
due inquiry) to which the Borrower is a party or by which the Borrower is
bound or to which the Borrower is subject.
9. Except as may be disclosed in regular periodic reports filed with
the Securities and Exchange Commission prior to the date of the Credit
Agreement (copies of which reports have heretofore been furnished to the
Lenders), I have no knowledge (after due inquiry) of any legal or arbitral
proceeding by or before any governmental or regulatory authority or agency,
now pending or threatened against the Borrower or any of its Subsidiaries
or any of their respective Properties that, if adversely determined, is
reasonably likely to have a Material Adverse Effect.
10. Neither the Borrower nor any of its Subsidiaries is an
"INVESTMENT COMPANY", or a company "CONTROLLED" by an "INVESTMENT COMPANY",
within the meaning of the Investment Company Act of 1940, as amended.
11. Neither the Borrower nor any of its Subsidiaries is a "HOLDING
COMPANY", or an "AFFILIATE" of a "HOLDING COMPANY" or a "SUBSIDIARY
COMPANY" of a "HOLDING COMPANY", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
The foregoing opinions are subject to the following comments and
qualifications:
A. The enforceability of Section 9.03 of the Credit Agreement may be
limited by laws rendering unenforceable indemnification contrary to Federal
or State securities laws and the public policy underlying such laws.
B. The enforceability of provisions in the Credit Documents to the
effect that terms may not be waived or modified except in writing may be
limited under certain circumstances.
C. I express no opinion as to (i) the effect of the laws of any
jurisdiction in which any Lender is located (other than the State of
Missouri) that limit the interest, fees, or other charges such Lender may
impose, and (ii) the second sentence of Section 9.08 of the Credit
Agreement, insofar as such sentence relates to the subject matter
E-4
jurisdiction of the United States District Court for the Southern District
of New York to adjudicate any controversy related to the Credit Documents.
The foregoing opinions are limited to matters involving the Federal
law of the United States of America, the law of the State of Missouri and (with
respect to my opinions in paragraphs 1 through 4 above) the Business Corporation
Law of the State of New York, and I do not express any opinion as to any other
laws.
At the request of my client, this opinion letter is, pursuant to
Section 3.01(b) of the Credit Agreement, provided to you by me in my capacity as
General Counsel of the Borrower and may not be relied upon by any Person for any
purpose other than in connection with the transactions contemplated by the
Credit Agreement without, in each instance, my prior written consent.
Very truly yours,
E-5
EXHIBIT F - Opinion of Special Counsel for the Agents
OPINION OF
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE AGENTS
[Closing Date]
To the Lenders and the Agents
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
We have participated in the preparation of the $2,000,000,000 Credit
Agreement (the "CREDIT AGREEMENT") dated as of July 23, 1997 among Mallinckrodt
Inc., a New York corporation (the "BORROWER"), the Lenders party thereto from
time to time (the "LENDERS"), Xxxxxxx Xxxxx Credit Partners L.P., as Syndication
Agent, Citibank, N.A., as Documentation Agent, and Xxxxxx Guaranty Trust Company
of New York, as Administrative Agent, and have acted as special counsel for the
Agents for the purpose of rendering this opinion pursuant to Section 3.01(c) of
the Credit Agreement. Terms defined in the Credit Agreement are used herein as
therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
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1. The execution, delivery and performance by the Borrower of the
Credit Agreement and the Notes are within the Borrower's corporate powers and
have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and each Note constitutes a valid and binding obligation of the
Borrower, in each case enforceable in accordance with its terms except as the
same may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Lender is located which limits the rate of
interest that such Lender may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
F-2
EXHIBIT G - Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, ____ among [ASSIGNOR] (the "ASSIGNOR"),
[ASSIGNEE] (the "ASSIGNEE"), MALLINCKRODT INC. (the "BORROWER") and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, as Administrative Agent (the "AGENT").
WHEREAS, this Assignment and Assumption Agreement (the "AGREEMENT") relates
to the $2,000,000,000 Credit Agreement dated as of July 23, 1997 among the
Borrower, the Assignor and the other Lenders party thereto from time to time, as
Lenders, Xxxxxxx Sachs Credit Partners L.P., as Syndication Agent, Citibank,
N.A., as Documentation Agent, and Xxxxxx Guaranty Trust Company of New York, as
Administrative Agent (as amended from time to time, the "CREDIT AGREEMENT");
[WHEREAS, as provided under the Credit Agreement, the Assignor has a [Term]
[Revolving Credit] Commitment to make Loans to the Borrower in an aggregate
principal amount at any time outstanding not to exceed $__________;]
WHEREAS, [Term] [Revolving Credit] Loans made to the Borrower by the
Assignor under the Credit Agreement in the aggregate principal amount of
$__________ are outstanding at the date hereof; and
[WHEREAS, the Assignor proposes to assign to the Assignee all of the rights
of the Assignor under the Credit Agreement in respect of a portion of its [Term]
[Revolving Credit] Commitment thereunder in an amount equal to $__________ (the
"ASSIGNED AMOUNT"), together with a corresponding portion of its outstanding
[Term] [Revolving Credit] Loans, and the Assignee proposes to accept assignment
of such rights and assume the corresponding obligations from the Assignor on
such terms;]
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
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SECTION 1. Definitions. All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the purchase
from the Assignor of the corresponding portion of the principal amount of the
[Term] [Revolving Credit] Loans made by the Assignor outstanding at the date
hereof. [Upon the execution and delivery hereof by the Assignor, the Assignee,
[the Borrower and the Administrative Agent] and the payment of the amounts
specified in Section 3 required to be paid on the date hereof (i) the Assignee
shall, as of the date hereof, succeed to the rights and be obligated to perform
the obligations of a Lender under the Credit Agreement with a [Term] [Revolving
Credit] Commitment in an amount equal to the Assigned Amount, and (ii) the
[Term] [Revolving Credit] Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee.] The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds in the amount heretofore mutually agreed between
them. It is understood that facility fees in respect of the Assigned Amount
accrued to the date hereof are for the account of the Assignor and such fees
accruing from and including the date hereof are for the account of the Assignee.
Each of the Assignor and the Assignee hereby agrees that if it receives any
amount under the Credit Agreement which is for the account of the other party
hereto, it shall receive the same for the account of such other party to the
extent of such other party's interest therein and shall promptly pay the same to
such other party.
[SECTION 4. Consent of the Borrower and the Administrative Agent. This
Agreement is conditioned upon the consent of the Borrower and the Administrative
Agent pursuant to Section 9.06(c) the Credit Agreement. The execution of this
Agreement by the Borrower and the Administrative Agent is evidence of this
consent. Pursuant to Section 9.06(c), the Borrower agrees to execute and deliver
a Note payable to the order of the Assignee to evidence the assignment and
assumption provided for herein.]
G-2
SECTION 5. Non-Reliance on Assignor. The Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of the Borrower, or the
validity and enforceability of the obligations of the Borrower in respect of the
Credit Agreement or any Note. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, any other Lender or either
Agent and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and will
continue to be responsible for making its own independent appraisal of the
business, affairs and financial condition of the Borrower.
SECTION 6. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
[ASSIGNOR]
By_________________________
Name:
Title:
[ASSIGNEE]
By__________________________
Name:
Title:
G-3
MALLINCKRODT INC.
By__________________________
Name:
Title:
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Administrative Agent
By__________________________
Name:
Title:
G-4
