EXHIBIT 10(dd)
CONFORMED COPY
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FIVE-YEAR
CREDIT AGREEMENT
dated as of
January 25, 2000
among
TRW INC.
The Borrowing Subsidiaries
Party Hereto
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE MANHATTAN INTERNATIONAL LIMITED,
as London Agent
XXXXXXX XXXXX XXXXXX INC.,
as Syndication Agent
___________________________
CHASE SECURITIES INC.
XXXXXXX XXXXX XXXXXX INC.,
as Joint Lead Arrangers and Book Managers
BANK OF AMERICA X.X.
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Co-Documentation Agents
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms............................................... 1
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SECTION 1.02. Classification of Loans and Borrowings...................... 16
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SECTION 1.03. Terms Generally............................................. 16
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SECTION 1.04. Accounting Terms; GAAP...................................... 16
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SECTION 1.05. Exchange Rates.............................................. 16
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SECTION 1.06. Redenomination of Certain Foreign Currencies................ 17
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ARTICLE II
The Credits
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SECTION 2.01. Commitments................................................. 17
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SECTION 2.02. Loans and Borrowings........................................ 18
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SECTION 2.03. Requests for Revolving Borrowings........................... 18
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SECTION 2.04. Competitive Bid Procedure................................... 19
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SECTION 2.05. Funding of Borrowings....................................... 21
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SECTION 2.06. Interest Elections.......................................... 22
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SECTION 2.07. Termination and Reduction of Commitments.................... 23
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SECTION 2.08. Repayment of Loans; Evidence of Debt........................ 23
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SECTION 2.09. Prepayment of Loans......................................... 24
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SECTION 2.10. Fees........................................................ 25
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SECTION 2.11. Interest.................................................... 25
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SECTION 2.12. Alternate Rate of Interest.................................. 26
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SECTION 2.13. Increased Costs............................................. 27
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SECTION 2.14. Break Funding Payments...................................... 28
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SECTION 2.15. Taxes....................................................... 28
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SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs. 29
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SECTION 2.17. Mitigation Obligations; Replacement of Lenders.............. 31
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SECTION 2.18. Borrowing Subsidiaries...................................... 31
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SECTION 2.19. Additional Reserve Costs.................................... 32
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SECTION 2.20. Foreign Subsidiary Costs.................................... 32
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ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers........................................ 33
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SECTION 3.02. Authorization; Enforceability............................... 33
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SECTION 3.03. Governmental Approvals; No Conflicts........................ 33
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SECTION 3.04. Financial Condition; No Material Adverse Change............. 34
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SECTION 3.05. Litigation and Environmental Matters........................ 34
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SECTION 3.06. Investment and Holding Company Status....................... 34
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SECTION 3.07. Taxes....................................................... 34
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SECTION 3.08. ERISA....................................................... 34
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SECTION 3.09. Year 2000................................................... 35
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ARTICLE IV
Conditions
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SECTION 4.01. Effective Date.............................................. 35
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SECTION 4.02. Each Credit Event........................................... 36
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SECTION 4.03. Initial Credit Event for each Borrowing Subsidiary.......... 36
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ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other Information.................. 37
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SECTION 5.02. Existence; Conduct of Business.............................. 38
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SECTION 5.03. Use of Proceeds............................................. 38
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ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness of Subsidiaries................................ 38
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SECTION 6.02. Mortgages................................................... 38
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SECTION 6.03. Sale and Lease-Back Transactions............................ 40
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SECTION 6.04. Fundamental Changes......................................... 40
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SECTION 6.05. ERISA....................................................... 40
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SECTION 6.06. Change in Control........................................... 40
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SECTION 6.07. Interest Coverage Ratio..................................... 41
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SECTION 6.08. Minimum Consolidated Net Worth.............................. 41
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ARTICLE VII
Events of Default.......................................................... 41
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ARTICLE VIII
The Agents................................................................. 43
ARTICLE IX
Guarantee.................................................................. 45
ARTICLE X
Miscellaneous
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SECTION 10.01. Notices..................................................... 46
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SECTION 10.02. Waivers; Amendments......................................... 47
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SECTION 10.03. Expenses; Indemnity; Damage Waiver.......................... 47
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SECTION 10.04. Successors and Assigns...................................... 48
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SECTION 10.05. Survival.................................................... 50
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SECTION 10.06. Counterparts; Integration; Effectiveness.................... 51
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SECTION 10.07. Severability................................................ 51
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SECTION 10.08. Right of Setoff............................................. 51
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SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of Process.. 51
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SECTION 10.10. WAIVER OF JURY TRIAL........................................ 52
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SECTION 10.11. Headings.................................................... 52
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SECTION 10.12. Confidentiality............................................. 52
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SECTION 10.13. Conversion of Currencies.................................... 53
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SECTION 10.14. Interest Rate Limitation.................................... 53
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SECTION 10.15. Lender Waiver............................................... 54
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SCHEDULES:
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Schedule 2.01 -- Commitments
EXHIBITS:
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Exhibit A-1 -- Form of Borrowing Subsidiary Agreement
Exhibit A-2 -- Form of Borrowing Subsidiary Termination
Exhibit B -- Form of Assignment and Acceptance
Exhibit C -- Form of Opinion of General Counsel of the Company
Exhibit D -- Form of Opinion of Counsel for each Borrowing Subsidiary
Exhibit E -- Mandatory Costs Rate
Exhibit F -- Form of Compliance Certificate
FIVE-YEAR CREDIT AGREEMENT dated as of January 25, 2000,
among TRW INC., the BORROWING SUBSIDIARIES from time to time party
hereto, the LENDERS from time to time party hereto, THE CHASE
MANHATTAN BANK, as Administrative Agent, CHASE MANHATTAN INTERNATIONAL
LIMITED, as London Agent, and XXXXXXX XXXXX XXXXXX INC., as
Syndication Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurocurrency Borrowing
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for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
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as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
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in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent and the London
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Agent.
"Agreement Currency" has the meaning assigned to such term in Section
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10.13(b).
"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Agent" means (a) with respect to a Loan or Borrowing
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denominated in Dollars, the Administrative Agent and (b) with respect to a Loan
or Borrowing denominated in any Foreign Currency, the London Agent.
"Applicable Creditor" has the meaning assigned to such term in Section
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10.13(b).
"Applicable Percentage" means, with respect to any Lender, the
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percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Eurocurrency
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Revolving Loan, or with respect to the facility fees or utilization fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Eurocurrency Spread", "Facility Fee Rate", or "Utilization
Fee Rate" as the case may be, based upon the ratings by Xxxxx'x and S&P,
respectively, applicable on such date to the Index Debt:
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Eurocurrency Facility Fee Utilization Fee
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Index Debt Ratings: Spread Rate Rate
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Category 1
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A or higher/A2 or higher .310% .090% .100%
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Category 2
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A-/A3 .400% .100% .100%
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Category 3
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BBB+/Baa1 .500% .125% .125%
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Category 4
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BBB/Baa2 .600% .150% .125%
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Category 5
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BBB-/Baa3 .650% .225% .125%
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Category 6
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lower than BBB-/ lower .875% .375% .250%
than Baa3
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For purposes of the foregoing, (i) if either Xxxxx'x or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 6; (ii)
if the ratings established or deemed to have been established by Xxxxx'x and S&P
for the Index Debt shall fall within different Categories, the Applicable Rate
shall be based on the higher of the two ratings unless one of the two ratings is
more than two Categories lower than the other, in which case the Applicable Rate
shall be determined by reference to the lower of the two ratings; and (iii) if
the ratings established or deemed to have been established by Xxxxx'x and S&P
for the Index Debt shall be changed (other than as a result of a change in the
rating system of Xxxxx'x or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Xxxxx'x or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04), and accepted by the Administrative Agent, in the
form of Exhibit B or any other form approved by the Administrative Agent.
"Attributable Debt" means, as to any particular lease under which any
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Person is liable at the time and at any date as of which the amount thereof is
to be determined, the lesser of (a) the fair value of the property subject to
such lease (as determined by the Directors of the Company) or (b) the total net
amount of rent required to be paid by such Person under such lease during the
remaining term thereof, discounted from the respective due dates thereof to such
date at the actual interest factor included in such rent. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect to such period
after excluding amounts required to be paid on account of maintenance and
repairs, insurance, taxes, assessments, water rates and similar charges. In the
case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such penalty, but no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
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"Availability Period" means the period from and including the
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Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" means the Company or any Borrowing Subsidiary.
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"Borrowing" means (a) Revolving Loans of the same Type and currency,
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made, converted or continued on the same date and, in the case of Eurocurrency
Loans, as to which a single Interest Period is in effect or (b) a Competitive
Loan or group of Competitive Loans of the same Type made on the same date and as
to which a single Interest Period is in effect.
"Borrowing Minimum" means (a) in the case of a Borrowing denominated
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in Dollars, $10,000,000 and (b) in the case of a Borrowing denominated in any
Foreign Currency, the smallest amount of such Foreign Currency that has a Dollar
Equivalent in excess of $10,000,000.
"Borrowing Multiple" means (a) in the case of a Borrowing denominated
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in Dollars, $5,000,000 and (b) in the case of a Borrowing denominated in any
Foreign Currency, 5,000,000 units (or, in the case of Sterling, 2,500,000 units)
of such currency.
"Borrowing Request" means a request by the Borrower for a Revolving
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Borrowing in accordance with Section 2.03.
"Borrowing Subsidiary" means, at any time, each Subsidiary that has
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been designated as a Borrowing Subsidiary by the Company pursuant to Section
2.18 and that has not ceased to be a Borrowing Subsidiary as provided in such
Section or Article VII.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
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Agreement substantially in the form of Exhibit A-1.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
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Termination substantially in the form of Exhibit A-2.
"Business Day" means any day that is not a Saturday, Sunday or other
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day on which commercial banks in New York City are authorized or required by law
to remain closed; provided, that (a) when used in connection with a Eurocurrency
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Loan denominated in Dollars or Sterling, the term "Business Day" shall also
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exclude any day on which banks are not open for dealings in deposits in the
applicable currency in the
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London interbank market and (b) when used in connection with a Loan denominated
in Euro, the term "Business Day" shall also exclude any day on which the TARGET
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payment system is not open for the settlement of payments in Euro.
"Calculation Date" means the last Business Day of each calendar month.
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"Capital Lease Obligations" of any Person means the obligations of
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such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
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or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 30% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Company; or (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Company by Persons who are not Continuing Directors. For purposes of the
foregoing, "Continuing Directors" shall mean (i) the directors of the Company on
the date hereof and (ii) each other director nominated or appointed by at least
two thirds of the Continuing Directors at the time of such nomination or
appointment.
"Change in Law" means (a) the adoption of any law, rule or regulation
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after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Chase" means The Chase Manhattan Bank and its successors.
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"Class", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
"CMIL" means Chase Manhattan International Limited and its successors.
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"Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
6
"Commitment" means, with respect to each Lender, the commitment of
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such Lender to make Revolving Loans, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.07
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.04. The initial amount of each Lender's
Commitment is set forth on Schedule 2.01 or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Lenders' Commitments is $1,000,000,000.
"Committed Currency" means Dollars and Foreign Currencies.
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"Company" means TRW Inc., an Ohio corporation.
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"Competitive Bid" means an offer by a Lender to make a Competitive
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Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
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Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by any Borrower for
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Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
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"Consolidated EBITDA" means, for any fiscal period, with respect to
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the Company and its consolidated Subsidiaries, (a) Consolidated Net Income for
such period plus (b) to the extent deducted in computing such Consolidated Net
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Income, without duplication, the sum of (i) income tax expense, (ii)
Consolidated Interest Expense, (iii) depreciation and amortization expense, (iv)
any extraordinary or non-recurring losses and (v) other noncash items (other
than accruals) reducing Consolidated Net Income, minus (c) to the extent added
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in computing such Consolidated Net Income, without duplication, the sum of (i)
any extraordinary or non-recurring gains and (ii) other noncash items (other
than accruals) increasing Consolidated Net Income, all as determined on a
consolidated basis in accordance with GAAP; provided that gains on sales of the
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Company's equity investments in publicly-traded companies and pension income
related to LucasVarity will in no event be subtracted under this clause (c) for
purposes of computing Consolidated EBITDA.
7
"Consolidated Funded Debt" means the Funded Debt of the Company and
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the consolidated Subsidiaries, determined on a consolidated basis in accordance
with GAAP.
"Consolidated Interest Expense" means, for any period, the aggregate
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of all interest expense of the Company and its consolidated Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Assets" means the sum of (a) the total of all assets
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of the Company and the consolidated Subsidiaries that would appear on a
consolidated balance sheet of the Company prepared in accordance with GAAP less
(b) Consolidated Net Worth.
"Consolidated Net Income" means, for any period, net income of the
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Company and the consolidated Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth" means, at any date, the consolidated
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shareholders' investment of the Company and the consolidated Subsidiaries,
exclusive of foreign currency translation adjustment and unrealized gains or
losses on securities as reported in the Company's financial statements under
"Other Comprehensive Income," determined as of such date. Consolidated
shareholders' investment, foreign currency translation adjustment and unrealized
gains or losses on securities of the Company shall be as included in the annual
or quarterly financial statements of the Company, as applicable.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power or by contract.
"Controlling" and "Controlled" have meanings correlative thereto.
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"Default" means any event or condition which constitutes an Event of
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Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the United States of
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America.
"Dollar Equivalent" means, on any date of determination, (a) with
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respect to any amount in Dollars, such amount, and (b) with respect to any
amount in any Foreign Currency, the equivalent in Dollars of such amount,
determined by the Administrative Agent pursuant to Section 1.05(b) using the
Exchange Rate with respect to such Foreign Currency at the time in effect under
the provisions of such Section.
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"Domestic Subsidiary" means each consolidated Subsidiary other than
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(a) any consolidated Subsidiary which the Directors of the Company reasonably
determine not to be material to the business or financial condition of the
Company; (b) any consolidated Subsidiary the major portion of the assets of
which are located, or the major portion of the business of which is carried on,
outside the United States of America, its territories and possessions; (c) any
consolidated Subsidiary which, during the 12 most recent calendar months (or
such shorter period as shall have elapsed since its organization) derived the
major portion of its gross revenues from sources outside the United States of
America; (d) any consolidated Subsidiary the major portion of the assets of
which consists of securities or obligations, or both, of one or more
corporations (whether or not consolidated Subsidiaries) of the types described
in the preceding clauses (b) and (c); and (e) any consolidated Subsidiary
organized after January 1, 2000 which the Company intends shall be operated in
such manner as to come within one or more of the preceding clauses (b), (c) and
(d).
"Effective Date" means the date on which the conditions specified in
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Section 4.01 are satisfied (or waived in accordance with Section 10.02).
"EMU Legislation" means the legislative measures of the European Union
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for the introduction of, changeover to or operation of the Euro in one or more
member states.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
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incorporated) that, together with a Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
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4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by a Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by a Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by a
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by a Borrower or any
9
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from a
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Euro" or "E" means the single currency of the European Union as
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constituted by the Treaty on European Union and as referred to in the EMU
Legislation.
"Eurocurrency", when used in reference to any Loan or Borrowing,
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refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate (or, in the
case of a Competitive Loan, the LIBO Rate).
"Event of Default" has the meaning assigned to such term in Article
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VII.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
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from time to time.
"Exchange Rate" means on any day, with respect to any Foreign
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Currency, the rate at which such Foreign Currency may be exchanged into Dollars,
as set forth at approximately 11:00 a.m., London time, on such day on the
Reuters World Currency Page for such Foreign Currency. In the event that such
rate does not appear on any Reuters World Currency Page, the Exchange Rate shall
be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative Agent and
the Company, or, in the absence of such agreement, such Exchange Rate shall
instead be the arithmetic average of the spot rates of exchange of the
Administrative Agent in the market where its foreign currency exchange
operations in respect of such Foreign Currency are then being conducted, at or
about 10:00 a.m., local time, on such date for the purchase of Dollars for
delivery two Business Days later; provided that if at the time of any such
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determination, for any reason, no such spot rate is being quoted, the
Administrative Agent, after consultation with the Company, may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error.
"Excluded Taxes" means (i) with respect to each Lender, taxes imposed
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on its net income, and franchise or similar taxes imposed on it, by a
jurisdiction under the laws of which it is organized or in which its principal
executive office or applicable lending office is located, and (ii) any United
States withholding tax imposed on such payment, but not excluding any portion of
such tax that exceeds the United States withholding tax which would have been
imposed on such a payment to such Lender under the laws and treaties in effect
when such Lender first becomes a party to this Agreement.
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"Existing Credit Agreements" means (i) the Credit Agreement dated as
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of January 27, 1999, and amended and restated as of February 26, 1999, among the
Company, the eligible subsidiaries referred to therein, the lenders party
thereto, Bank of America National Trust and Savings Association, Citibank, N.A.
and Barclays Bank PLC, as co-syndication agents, and Xxxxxx Guaranty Trust
Company of New York, as administrative agent, (ii) the Revolving Credit
Agreement dated as of December 10, 1997, among the Company and the financial
institutions party thereto, (iii) the Multi-Year Revolving Credit Agreement, as
amended and restated as of May 8, 1996, among the Company and the financial
institutions party thereto, and (iv) the Multi-Currency Revolving Credit
Facility Agreement, as amended and restated as of August 7, 1997, among TRW
Finance International, Barclays Bank PLC and the financial institutions party
thereto, in each case as amended from time to time.
"Federal Funds Effective Rate" means, for any day, the weighted
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average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, treasurer or
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controller of the Company.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
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Eurocurrency Competitive Loan), the fixed rate of interest per annum specified
by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
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Rate.
"Foreign Currency" means Sterling and Euros.
----------------
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that in which the applicable Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
------------------
Subsidiary.
11
"Funded Debt" means all Indebtedness of the type described in clauses
-----------
(a) and (b) of the definition thereof having a maturity of more than 12 months
from the date such Indebtedness was incurred or having a maturity of 12 months
or less but by its terms being renewable or extendable beyond 12 months from the
date such Indebtedness was incurred at the option of the obligor.
"GAAP" means generally accepted accounting principles in the United
----
States of America applied in a manner consistent with the financial statements
referred to in Section 3.04(a).
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
"Guarantor Subsidiary" means any Subsidiary that shall have delivered
--------------------
to the Administrative Agent (a) a guarantee agreement in form and substance
satisfactory to the Administrative Agent under which it shall guarantee the
payment of the Obligations and (b) such evidence as the Administrative Agent may
reasonably have requested (which may include an opinion of counsel qualified in
any relevant jurisdiction) as to the corporate power and authority of such
Subsidiary to enter into and the enforceability of such guarantee agreement and
such other matters related to such guarantee agreement as the Administrative
Agent may reasonably have determined to be material.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or
12
similar instruments, (c) all obligations of such Person upon which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Indebtedness of
others secured by any Mortgage on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all non-contingent obligations (and, for
purposes of Section 6.02 and the definition of Material Indebtedness, all
contingent obligations) of such Person to reimburse any bank or other Person in
respect of amounts paid under letters of credit and similar instruments and (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except to
the extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Index Debt" means senior, unsecured, long-term indebtedness for
----------
borrowed money of the Company that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information Memorandum
----------------------
dated January 2000 distributed to the Lenders, together with the appendices
thereto, as amended through the date hereof.
"Interest Election Request" means a request by the relevant Borrower
-------------------------
to convert or continue a Revolving Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
---------------------
last day of each March, June, September and December, (b) with respect to any
Eurocurrency Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurocurrency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period and (c) with
respect to any Fixed Rate Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days' duration (unless
otherwise specified in the applicable Competitive Bid Request), each day prior
to the last day of such Interest Period that occurs at intervals of 90 days'
duration after the first day of such Interest Period, and any other dates that
are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing.
13
"Interest Period" means (a) with respect to any Eurocurrency
---------------
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the applicable Borrower may elect and (b) with respect
to any Fixed Rate Borrowing, the period (which shall not be less than 7 days or
more than 360 days) commencing on the date of such Borrowing and ending on the
date specified in the applicable Competitive Bid Request; provided, that (i) if
--------
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurocurrency Borrowing only, such next succeeding Business Day would fall
in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period pertaining to a
Eurocurrency Borrowing that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and, in the case of a Revolving Borrowing, thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Judgment Currency" has the meaning assigned to such term in Section
-----------------
10.13(b).
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that shall have ceased to be a party
hereto pursuant to an Assignment and Acceptance.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
---------
Interest Period, the rate per annum determined by the Applicable Agent at
approximately 11:00 a.m., London time, on the Quotation Day for such Interest
Period by reference to the British Bankers' Association Interest Settlement
Rates for deposits in the currency of such Borrowing (as reflected on the
applicable Telerate screen), for a period equal to such Interest Period;
provided that, to the extent that an interest rate is not ascertainable pursuant
--------
to the foregoing provisions of this definition, the "LIBO Rate" shall be the
average (rounded upward, if necessary, to the next 1/100 of 1%) of the
respective interest rates per annum at which deposits in the currency of such
Borrowing are offered for such Interest Period to major banks in the London
interbank market by Chase and Citibank, N.A. at approximately 11:00 a.m., London
time, on the date two Business Days prior to the beginning of such Interest
Period.
14
"Loan Documents" means this Agreement, each Borrowing Subsidiary
--------------
Agreement, each Borrowing Subsidiary Termination, and each promissory note
delivered pursuant to this Agreement.
"Loans" means the loans made by the Lenders to the Borrowers pursuant
-----
to this Agreement.
"Local Time" means (a) with respect to a Loan or Borrowing denominated
----------
in Dollars, New York City time, and (b) with respect to a Loan or Borrowing
denominated in any Foreign Currency, London time.
"London Agent" means Chase Manhattan International Limited.
------------
"LucasVarity" shall mean LucasVarity Limited, formerly known as
-----------
LucasVarity plc, an English company.
"Margin" means, with respect to any Competitive Loan bearing interest
------
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Margin Stock" means "margin stock" as defined in Regulation U.
------------
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
consolidated financial condition of the Company and the consolidated
Subsidiaries, taken as a whole or (b) the ability of the Company to perform its
payment obligations under the Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans), of
---------------------
any one or more of the Company and the Material Subsidiaries in an aggregate
principal amount exceeding $100,000,000.
"Material Subsidiary" means (a) any Borrowing Subsidiary, (b) any
-------------------
subsidiary that directly or indirectly owns or Controls any Borrowing Subsidiary
or other Material Subsidiary and (c) any other Subsidiary whose assets (or, if
such Subsidiary has subsidiaries, whose consolidated assets) are at least equal
to $100,000,000.
"Maturity Date" means January 25, 2005.
-------------
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Mortgage" has the meaning assigned to such term in Section 6.02.
--------
15
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Obligations" means the due and punctual payment of (a) the principal
-----------
of and premium, if any, and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans made to any Borrower, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise and (b) all
other monetary obligations, including fees, costs, expenses and indemnities,
whether primary, secondary, direct, contingent, fixed or otherwise (including
monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of any Borrower under this Agreement and the
other Loan Documents.
"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 any Loan Document or
from the execution, delivery, registration or enforcement of, or otherwise with
respect to, this Agreement or any Loan Document; provided that Other Taxes shall
--------
not include Excluded Taxes.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Permitted Subsidiary Indebtedness" means (a) Indebtedness under this
---------------------------------
Agreement or the 364-Day Credit Agreement, (b) any Indebtedness of a Subsidiary
owed to the Company or another Subsidiary, (c) Indebtedness of Guarantor
Subsidiaries, (d) any Indebtedness deemed incurred in connection with one or
more receivables securitization transactions entered into by the Company and/or
one or more Subsidiaries in an aggregate amount of up to $500,000,000 (minus the
amount of any such Indebtedness of the Company) and (e) any Indebtedness of a
finance Subsidiary with no significant assets or operations to the extent (i)
such Indebtedness is Guaranteed by the Company and is not Guaranteed, or secured
by assets or obligations of, any other Subsidiary, (ii) the proceeds of such
Indebtedness are dividended to the Company or another Subsidiary or advanced to
the Company and (iii) such finance Subsidiary is not the obligee in respect of
any Indebtedness of any other Subsidiary.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which any Borrower or
any ERISA
16
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Principal Property" means any single manufacturing plant, engineering
------------------
facility or research facility owned or leased by the Company or a Domestic
Subsidiary other than any such plant or facility or portion thereof which the
Board of Directors reasonably determines not to be of material importance to the
Company and its Subsidiaries taken as a whole.
"Quotation Day" means, with respect to any Eurocurrency Borrowing and
-------------
any Interest Period, the day on which it is market practice in the relevant
interbank market for prime banks to give quotations for deposits in the currency
of such Borrowing for delivery on the first day of such Interest Period. If
such quotations would normally be given by prime banks on more than one day, the
Quotation Day will be the last of such days.
"Register" has the meaning set forth in Section 10.04.
--------
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
----------------
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
--------
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VII, and for all purposes after the Loans become due and payable
pursuant to Article VII or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders.
"Revolving Credit Exposure" means, with respect to any Lender at any
-------------------------
time, the sum at such time, without duplication, of (a) such Lender's Applicable
Percentage of the principal amounts of the outstanding Revolving Loans
denominated in Dollars plus (b) such Lender's Applicable Percentage of the
aggregate amount of the Dollar Equivalents of the principal amounts of the
outstanding Revolving Loans denominated in Foreign Currencies.
17
"Revolving Loan" means a Loan made pursuant to Sections 2.01 and
--------------
2.03.
"Specified Company Indebtedness" means, at any time, (a) all
------------------------------
Indebtedness of the Company secured by Mortgages that would be prohibited by
Section 6.02 but for the provisions of clause (h) thereof; (b) all Attributable
Debt of the Company related to Sale and Leaseback Transactions that would be
prohibited by Section 6.03 but for the provisions of clause (b) thereof; (c) all
Indebtedness of the Company secured by Mortgages on capital stock of or other
equity interests in Foreign Subsidiaries; and (d) all Indebtedness of the
Company that is secured by Mortgages on accounts receivable or that is deemed to
arise in connection with receivables securitization transactions, but only to
the extent the amount of such Indebtedness of the Company and the Domestic
Subsidiaries so secured or so arising exceeds $500,000,000.
"S&P" means Standard & Poor's Ratings Services, a division of The
---
XxXxxx-Xxxx Companies, Inc.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Sterling" or "(Pounds)" means the lawful money of the United Kingdom.
-------- --------
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
18
"Subsidiary" means any subsidiary of the Company.
----------
"Taxes" means any and all present or future taxes or other charges of
-----
any nature deducted, withheld or otherwise imposed with respect to any payment
by any Borrower pursuant to this Agreement or any Loan Document, and all
liabilities with respect thereto other than Excluded Taxes.
"364-Day Credit Agreement" means the 364-Day Credit Agreement dated as
------------------------
of the date hereof among the Company, the borrowing subsidiaries from time to
time party thereto, the lenders from time to time party thereto, Chase, as
administrative agent and Xxxxxxx Xxxxx Xxxxxx Inc., as syndication agent.
"Transactions" means the execution, delivery and performance by the
------------
Borrowers of the Loan Documents, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate
Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a
Fixed Rate.
"Wholly Owned Domestic Subsidiary" means each Domestic Subsidiary all
--------------------------------
the outstanding shares of which, other than directors' qualifying shares, shall
at the time be owned by the Company or by the Company and one or more Wholly
Owned Domestic Subsidiaries, or by one or more Wholly Owned Domestic
Subsidiaries.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
--------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Revolving Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
----
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
----
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be
19
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Exchange Rates. (a) Not later than 1:00 p.m., New York
--------------
City time, on each Calculation Date, the Administrative Agent shall (i)
determine the Exchange Rate as of such Calculation Date with respect to each
Foreign Currency and (ii) give notice thereof to the Lenders and the Company.
The Exchange Rates so determined shall become effective on the first Business
Day immediately following the relevant Calculation Date (a "Recalculation
-------------
Date"), shall remain effective until the next succeeding Recalculation Date, and
----
shall for all purposes of this Agreement (other than Section 10.13 or any other
provision expressly requiring the use of a current Exchange Rate) be the
Exchange Rates employed in converting any amounts between Dollars and Foreign
Currencies.
(b) Not later than 5:00 p.m., New York City time, on each
Recalculation Date and each date on which Revolving Loans denominated in any
Foreign Currency are made, the Administrative Agent shall (i) determine the
aggregate amount of the Dollar Equivalents of the principal amounts of the Loans
denominated in Foreign Currencies then outstanding (after giving effect to any
Loans denominated in Foreign Currencies made or repaid on such date) and (ii)
notify the Lenders and the Company of the results of such determination.
20
SECTION 1.06. Redenomination of Certain Foreign Currencies. (a) Each
--------------------------------------------
obligation of any party to this Agreement to make a payment denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall be redenominated into
Euro at the time of such adoption (in accordance with the EMU Legislation). If,
in relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London Interbank Market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
--------
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU Legislation and (i) without limiting the
liability of any Borrower for any amount due under this Agreement and (ii)
without increasing any Commitment of any Lender, all references in this
Agreement to minimum amounts (or integral multiples thereof) denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall, immediately upon such
adoption, be replaced by references to such minimum amounts (or integral
multiples thereof) as shall be specified herein with respect to Borrowings
denominated in Euro.
(c) Each provision of this Agreement shall be subject to such
reasonable changes of construction as the Administrative Agent may from time to
time specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions set
-----------
forth herein, each Lender agrees to make Revolving Loans to any Borrower from
time to time during the Availability Period in any Committed Currency in an
aggregate principal amount that will not result in (a) such Lender's Revolving
Credit Exposure exceeding its Commitment or (b) the sum of the total Revolving
Credit Exposures plus the aggregate principal amount of the outstanding
Competitive Loans exceeding the total Commitments. Within the foregoing limits,
and subject to the terms and conditions set forth herein, any Borrower may
borrow, prepay and reborrow Revolving Loans.
21
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
---------------------
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
--------
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required
hereunder.
(b) Subject to Section 2.12, (i) each Revolving Borrowing denominated
in a Foreign Currency shall be comprised entirely of Eurocurrency Loans, (ii)
each Revolving Borrowing denominated in Dollars shall be comprised entirely of
ABR Loans or Eurocurrency Loans as the applicable Borrower may request in
accordance herewith, and (iii) each Competitive Borrowing shall be comprised
entirely of Eurocurrency Loans or Fixed Rate Loans as the applicable Borrower
may request in accordance herewith. Each Lender at its option may make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
--------
affect the obligation of any Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any Revolving
Borrowing, such Revolving Borrowing shall be in an aggregate amount that is at
least equal to the Borrowing Minimum and an integral multiple of the Borrowing
Multiple; provided that an ABR Revolving Borrowing may be in an aggregate amount
--------
that is equal to the entire unused balance of the total Commitments. Each
Competitive Borrowing shall be in an aggregate amount that is an integral
multiple of $5,000,000 and not less than $10,000,000. Borrowings of more than
one Type and Class may be outstanding at the same time; provided that there
--------
shall not at any time be more than a total of 20 Eurocurrency Revolving
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
---------------------------------
Borrowing, the applicable Borrower, or the Company on behalf of the applicable
Borrower, shall notify the Applicable Agent of such request by telephone (a) in
the case of a Eurocurrency Borrowing, not later than 11:00 a.m., Local Time,
three Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the
Business Day of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Applicable Agent of a written
22
Borrowing Request in a form approved by the Applicable Agent and signed by the
applicable Borrower, or by the Company on behalf of the applicable Borrower.
Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf the
Company is requesting such Borrowing);
(ii) the currency and aggregate principal amount of the requested
Borrowing;
(iii) the date of the requested Borrowing, which shall be a Business
Day;
(iv) whether the requested Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing;
(v) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of
Section 2.05.
If no currency is specified with respect to any requested Eurocurrency Revolving
Borrowing, then the Borrower shall be deemed to have selected Dollars. If no
election as to the Type of Borrowing is specified, then the requested Borrowing
shall be (i) in the case of a Borrowing denominated in Dollars, an ABR
Borrowing, and (ii) in the case of a Borrowing denominated in a Foreign
Currency, a Eurocurrency Borrowing. If no Interest Period is specified with
respect to any requested Eurocurrency Revolving Borrowing, then the Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Applicable Agent shall advise each Lender of the details thereof
and of the amount of such Lender's Loan to be made as part of the requested
Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms
-------------------------
and conditions set forth herein, from time to time during the Availability
Period any Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans, in each
case denominated in Dollars; provided that after giving effect to any Borrowing
--------
of Competitive Loans the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of the outstanding Competitive Loans shall not exceed
the total Commitments. To request Competitive Bids, the Company or the
applicable Borrowing Subsidiary shall notify the Administrative Agent of such
request by telephone, in the case of a Eurocurrency
23
Borrowing, not later than 11:00 a.m., New York City time, four Business Days
before the date of the proposed Borrowing and, in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that the Borrowers may
--------
submit up to (but not more than) three Competitive Bid Requests on the same day.
Each such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Competitive Bid
Request in a form approved by the Administrative Agent and signed by the
relevant Borrower. Each such telephonic and written Competitive Bid Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrower requesting such Borrowing (or on whose behalf the
Company is requesting such Borrowing);
(ii) the aggregate principal amount of the requested Borrowing;
(iii) the date of the requested Borrowing, which shall be a Business
Day;
(iv) whether such Borrowing is to be a Eurocurrency Borrowing or a
Fixed Rate Borrowing;
(v) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of
Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to any Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurocurrency Competitive Borrowing, not later than
9:30 a.m., New York City time, three Business Days before the proposed date of
such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later
than 9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by
24
the relevant Borrower) of the Competitive Loan or Loans that the Lender is
willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is
prepared to make such Loan or Loans (expressed as a percentage rate per annum in
the form of a decimal to no more than four decimal places) and (iii) the
Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the Company by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower
may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurocurrency Competitive
Borrowing, not later than 10:30 a.m., New York City time, three Business Days
before the date of the proposed Competitive Borrowing, and in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the date
of the proposed Competitive Borrowing; provided that (i) the failure of the
--------
Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if the relevant Borrower rejects a Competitive
Bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of the
Competitive Bids accepted by the Borrower shall not exceed the aggregate amount
of the requested Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii) above, the
Borrower may accept Competitive Bids at the same Competitive Bid Rate in part,
which acceptance, in the case of multiple Competitive Bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless the amount of such
Competitive Loan is an integral multiple of $5,000,000; provided further that if
----------------
a Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may have a minimum amount
of $1,000,000 and in calculating the pro rata allocation of acceptances of
portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner determined by the Borrower. A notice given by a Borrower
pursuant to this paragraph shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
25
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
----------------------
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, Local Time, to the account of the
Applicable Agent most recently designated by it for such purpose by notice to
the Lenders. The Applicable Agent will make such Loans available to the Borrower
by promptly crediting the amounts so received, in like funds, to an account of
the Borrower maintained by the Applicable Agent (i) in New York City, in the
case of Loans denominated in Dollars, or (ii) in London, in the case of Foreign
Currency Loans, and designated by such Borrower in the applicable Borrowing
Request or Competitive Bid Request.
(b) Unless the Applicable Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Applicable Agent such Lender's share of such Borrowing,
the Applicable Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Applicable Agent, then the
applicable Lender and such Borrower severally agree to pay to the Applicable
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to such
Borrower to but excluding the date of payment to the Applicable Agent, at (x)
the Federal Funds Effective Rate (in the case of a Borrowing in Dollars) and (y)
the rate reasonably determined by the Applicable Agent to be the cost to it of
funding such amount (in the case of a Borrowing in a Foreign Currency). If such
Lender pays such amount to the Applicable Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing
-------------------
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurocurrency Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the relevant
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurocurrency Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. A Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans
26
comprising each such portion shall be considered a separate Borrowing. This
Section shall not apply to Competitive Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Company or the
Borrowing Subsidiary (or the Company on its behalf) shall notify the Applicable
Agent of such election by telephone by the time that a Borrowing Request would
be required under Section 2.03 if such Borrower were requesting a Revolving
Borrowing of the Type and currency resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Applicable Agent of a written Interest Election Request in a
form approved by the Applicable Agent and signed by the relevant Borrower, or by
the Company on its behalf.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the relevant Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Applicable Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the relevant Borrower fails to deliver a timely Interest
Election Request with respect to a Eurocurrency Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided
27
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing (unless such Borrowing is denominated in a Foreign Currency, in
which case such Borrowing shall become due and payable on the last day of such
Interest Period). Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Applicable Agent, at the request
of the Required Lenders, so notifies the Company, then, so long as an Event of
Default is continuing (i) no outstanding Revolving Borrowing denominated in
Dollars may be converted to or continued as a Eurocurrency Borrowing and (ii)
unless repaid, each Eurocurrency Revolving Borrowing denominated in Dollars
shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
-----------------------------------------
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
--------
shall be in an amount that is an integral multiple of $10,000,000 and (ii) the
Company shall not terminate or reduce the Commitments if, after giving effect to
any concurrent prepayment of the Loans in accordance with Section 2.09, the sum
of the Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans would exceed the total Commitments.
(c) The Company shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least one Business Day prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
London Agent and the Lenders of the contents thereof. Each notice delivered by
the Company pursuant to this Section shall be irrevocable; provided that a
--------
notice of termination of the Commitments delivered by the Company may state that
such notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) Each
------------------------------------
Borrower hereby unconditionally promises to pay (i) to the Applicable Agent for
the account of each Lender the then unpaid principal amount of each Revolving
Loan on the Maturity Date and (ii) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Competitive Loan on the
last day of the Interest Period applicable to such Loan.
28
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Agents hereunder for the account of the Lenders and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall, absent manifest error, be prima facie evidence
----- -----
of the existence and amounts of the obligations recorded therein; provided that
--------
the failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of any
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, each Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans. (a) Any Borrower shall have the
--------------------
right at any time and from time to time to prepay any Borrowing of such Borrower
in whole or in part, subject to prior notice in accordance with paragraph (c) of
this Section; provided that a Borrower shall not have the right to prepay any
--------
Competitive Loan without the prior consent of the Lender thereof.
(b) In the event and on each occasion that the sum of the aggregate
Revolving Credit Exposures and the aggregate outstanding principal amount of the
Competitive Loans exceeds 105% of the total Revolving Commitments, the Borrowers
shall promptly prepay Revolving Borrowings in an aggregate amount equal to such
excess. The Administrative Agent shall promptly notify the Company in the event
it determines that any prepayment is required under this paragraph.
29
(c) The Company shall notify the Applicable Agent by telephone
(confirmed by telecopy) of any prepayment hereunder not later than 11:00 a.m.,
Local Time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
--------
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.07, then such notice
of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.07. Promptly following receipt of any such notice
relating to a Revolving Borrowing, the Applicable Agent shall advise the Lenders
of the contents thereof. Each partial prepayment of any Revolving Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Revolving Borrowing of the same Type as provided in Section 2.02. Each
prepayment of a Revolving Borrowing shall be applied ratably to the Loans
included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.11.
SECTION 2.10. Fees. (a) The Company agrees to pay to the
-----
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the date
hereof to but excluding the date on which such Commitment terminates; provided
--------
that, if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such facility fee shall continue to accrue on the
daily amount of such Lender's Revolving Credit Exposure from and including the
date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall
be payable in arrears on the last day of March, June, September and December of
each year and on the date on which the Commitments terminate, commencing on the
first such date to occur after the date hereof; provided that any facility fees
--------
accruing after the date on which the Commitments terminate shall be payable on
demand. All facility fees shall be computed on the basis of a year of 365 days
(or 366 days in the case of a leap year) and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(b) For any day on which the sum of the total Revolving Credit
Exposure plus the aggregate principal amount of the outstanding Competitive
Loans shall be greater than 33-1/3% of the total Commitments, the Borrower shall
pay to the Administrative Agent for the account of each Lender a utilization fee
which shall accrue at the Applicable Rate on the aggregate amount of such
Lender's outstanding Loans on such day. The accrued utilization fees, if any,
shall be payable in arrears on the last day of each March, June, September and
December, on any date prior to the Maturity Date on which the Commitments
terminate and on the Maturity Date. All utilization fees shall be computed on
the basis of a year of 365 days (or 366 days in the case of a leap year) and
30
shall be payable for the actual number of days elapsed (including the first day
but excluding the last day).
(c) The Company agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and utilization fees, to the Lenders. Fees paid shall
not be refundable absent manifest error in payment or computation.
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
---------
shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest (i) in the case of a Eurocurrency Revolving Loan, at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable
Rate, or (ii) in the case of a Eurocurrency Competitive Loan, at the LIBO Rate
for the Interest Period in effect for such Borrowing plus (or minus, as
applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
--------
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurocurrency Revolving Loan prior to the end of the current Interest
31
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that (i) interest on Borrowings denominated in Sterling and
(ii) interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis of
a year of 365 days (or 366 days in a leap year), and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate
or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
---------------------------
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Applicable Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period; or
(b) the Applicable Agent is advised by the Required Lenders (or, in
the case of a Eurocurrency Competitive Loan, the Lender that is required to
make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect
the cost to such Lenders (or Lender) of making or maintaining their Loans
(or its Loan) included in such Borrowing for such Interest Period;
then the Applicable Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Applicable Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing
denominated in such currency to, or continuation of any Revolving Borrowing
denominated in such currency as, a Eurocurrency Borrowing shall be ineffective,
and any Eurocurrency Borrowing denominated in such currency that is requested to
be continued (A) if such currency is the Dollar, shall be converted to an ABR
Borrowing on the last day of the Interest Period applicable thereto and (B) if
such currency is a Foreign Currency, shall be repaid on the last day of the
Interest Period applicable thereto, (ii) any Borrowing Request for a
Eurocurrency Revolving Borrowing denominated in such currency (A) if such
currency is the Dollar, shall be deemed a request for an ABR Borrowing and (B)
if such currency is a Foreign Currency, shall be ineffective, and (iii) any
request by a Borrower for a Eurocurrency Competitive Borrowing shall be
ineffective; provided that if the circumstances giving rise to such
--------
32
notice do not affect all the Lenders, then requests by a Borrower for
Eurocurrency Competitive Borrowings may be made to Lenders that are not affected
thereby.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
----------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or Eurocurrency Loans or Fixed Rate
Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan or Fixed Rate Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Company will pay to such Lender such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by, such Lender, to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Company will pay to such Lender,
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Company and shall be conclusive absent manifest error. The Company shall pay
such Lender, as the case may be, the amount shown as due on any such certificate
within 15 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Company shall not be required to
--------
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 45 days prior to the date that such Lender
notifies the Company of the Change in Law giving rise to such increased costs or
reductions and of such Lender's intention to claim
33
compensation therefor; provided further that, if the Change in Law giving rise
-------- -------
to such increased costs or reductions is retroactive, then the 45-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.14. Break Funding Payments. In the event of (a) the
----------------------
payment of any principal of any Eurocurrency Loan or Fixed Rate Loan other than
on the last day of an Interest Period applicable thereto (including as a result
of an Event of Default), (b) the conversion of any Eurocurrency Loan other than
on the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan on the date specified in
any notice delivered pursuant hereto, (d) the failure to borrow any Competitive
Loan after accepting the Competitive Bid to make such Loan, or (e) the
assignment of any Eurocurrency Loan or Fixed Rate Loan other than on the last
day of the Interest Period applicable thereto as a result of a request by the
Company pursuant to Section 2.17, then, in any such event, the Company shall
compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurocurrency Loan, such loss, cost or expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the last day of the then current Interest Period therefor (or,
in the case of a failure to borrow, convert or continue, for the period that
would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for deposits in the applicable currency of a comparable amount and
period from other banks in the eurocurrency market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall pay such Lender the amount
shown as due on any such certificate within 15 days after receipt thereof.
SECTION 2.15. Taxes. (a) Each payment by a Borrower to or for the
-----
account of a Lender hereunder or under any Loan Document shall be made without
deduction for any Taxes or Other Taxes; provided that, if a Borrower shall be
required by law to deduct any Taxes or Other Taxes from such payment, (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) such Lender receives an amount
34
equal to the sum it would have received had no such deduction been made, (ii)
such Borrower shall make such deduction, (iii) such Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law and (iv) such Borrower shall promptly furnish to
the Administrative Agent, at its address specified in or pursuant to Section
10.01, the original or a certified copy of a receipt evidencing payment thereof
or other reasonably satisfactory evidence thereof.
(b) The relevant Borrower shall indemnify each Lender for the full
amount of any Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted (whether or not correctly) by any jurisdiction
on amounts payable under this Section) paid by such Lender with respect to
amounts paid by such Borrower pursuant to this Agreement or any Loan Document,
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. This indemnification shall be paid within 15 days after
the later of the date such Lender makes demand therefor and the date such
payment is made.
(c) Each Lender organized under the laws of a jurisdiction outside the
United States, before it signs and delivers this Agreement in the case of each
Lender listed on the signature pages hereof and before it becomes a Lender in
the case of each other Lender, and from time to time thereafter if requested in
writing by the Company (but only so long as such Lender remains lawfully able to
do so), shall provide the Company and the Administrative Agent with Internal
Revenue Service form W-8BEN or W-8ECI in duplicate, 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 such 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 by it pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States.
(d) For any period with respect to which a Lender has failed to
provide the Company or the Administrative Agent with the appropriate form as
required by paragraph (c) above (unless such failure is due to a change in
treaty, law or regulation occurring after the date on which such form originally
was required to be provided or results from the Company's failure to make a
timely written request pursuant to paragraph (c) above), such Lender shall not
be entitled to indemnification under paragraphs (a) or (b) above 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 Borrowers shall take such steps as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
35
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-
------------------------------------------------------
offs. (a) Each Borrower shall make each payment required to be made by it
-----
hereunder or under any other Loan Document (whether of principal, interest,
fees, or of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise)
prior to 2:00 p.m., Local Time, on the date when due, in immediately available
funds, without set-off or counterclaim. All such payments shall be made to the
Applicable Agent to such account as it shall from time to time specify at its
offices (i) in the case of any amount denominated in Dollars, at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, (xx) in the case of any amount denominated in a
Foreign Currency, at Chase Manhattan International Limited, Trinity Tower, 9
Xxxxxx Xxxx Street, London, England E19YT, or, in any such case, at such other
address as the Applicable Agent shall from time to time specify in a notice
delivered to the Company; provided that payments pursuant to Section 2.13,
--------
Section 2.14, Section 2.15 and Section 10.03 shall be made directly to the
Persons entitled thereto. The Applicable Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment hereunder shall be
due on a day that is not a Business Day, the date for payment shall be extended
to the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments hereunder of principal or interest in respect of any Loan shall be
made in the currency of such Loan; all other payments hereunder and under each
other Loan Document shall be made in Dollars. Any payment required to be made
by an Agent hereunder shall be deemed to have been made by the time required if
such Agent shall, at or before such time, have taken the necessary steps to make
such payment in accordance with the regulations or operating procedures of the
clearing or settlement system used by such Agent to make such payment. Any
amount payable by any Agent to one or more Lenders in the national currency of a
member state of the European Union that has adopted the Euro as its lawful
currency shall be paid in Euro.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving Loans
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans of other Lenders to the extent
necessary so that the benefit of all such payments shall be
36
shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Revolving Loans; provided
--------
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by any Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Company or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). Each Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Applicable Agent shall have received notice from the
Company prior to the date on which any payment is due to the Applicable Agent
for the account of the Lenders hereunder that the relevant Borrower will not
make such payment, the Applicable Agent may assume that such Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders, the amount due. In such event, if such
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Applicable Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Applicable Agent, at the greater of the Federal Funds Effective
Rate and a rate determined by the Applicable Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(b) or 2.16(d), then the Administrative Agent or
the London Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Administrative Agent or
the London Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a)
----------------------------------------------
If any Lender requests compensation under Section 2.13, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future
37
and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender.
(b) If any Lender requests compensation under Section 2.13, or if any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Company may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under the Loan
Documents (other than any outstanding Competitive Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
--------
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans), accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Company (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.13 or payments required to be made
pursuant to Section 2.15, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Company to require such
assignment and delegation cease to apply.
SECTION 2.18. Borrowing Subsidiaries. On or after the Effective
----------------------
Date, the Company may designate any Subsidiary of the Company as a Borrowing
Subsidiary by delivery to the Administrative Agent of a Borrowing Subsidiary
Agreement executed by such Subsidiary and the Company, and upon such delivery
such Subsidiary shall for all purposes of this Agreement be a Borrowing
Subsidiary and a party to this Agreement until the Company shall have executed
and delivered to the Administrative Agent a Borrowing Subsidiary Termination
with respect to such Subsidiary, whereupon such Subsidiary shall cease to be a
Borrowing Subsidiary and a party to this Agreement. Notwithstanding the
preceding sentence, no Borrowing Subsidiary Termination will become effective as
to any Borrowing Subsidiary at a time when any principal of or interest on any
Loan to such Borrowing Subsidiary shall be outstanding hereunder, provided that
--------
such Borrowing Subsidiary Termination shall be effective to terminate such
Borrowing Subsidiary's right to make further Borrowings under this Agreement.
Promptly following receipt of any Borrowing Subsidiary Agreement, the
Administrative Agent shall send a copy thereof to each Lender.
SECTION 2.19. Additional Reserve Costs. (a) If and so long as any
------------------------
Lender is required to make special deposits with the Bank of England, to
maintain reserve
38
asset ratios or to pay fees, in each case in respect of such Lender's
Eurocurrency Loans in any Foreign Currency, such Lender may require the relevant
Borrower to pay, contemporaneously with each payment of interest on each of such
Loans, additional interest on such Loan at a rate per annum equal to the
Mandatory Costs Rate calculated in accordance with the formula and in the manner
set forth in Exhibit E hereto.
(b) If and so long as any Lender is required to comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other
authority (including any such requirement imposed by the European Central Bank
or the European System of Central Banks, but excluding requirements reflected in
the Statutory Reserve Rate or the Mandatory Costs Rate) in respect of any of
such Lender's Eurocurrency Loans in any Foreign Currency, such Lender may
require the relevant Borrower to pay, contemporaneously with each payment of
interest on each of such Lender's Eurocurrency Loans subject to such
requirements, additional interest on such Loan at a rate per annum specified by
such Lender to be the cost to such Lender of complying with such requirements in
relation to such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or (b)
above shall be determined by the relevant Lender, which determination shall be
conclusive absent manifest error, and notified to the relevant Borrower (with a
copy to the Administrative Agent) at least five Business Days before each date
on which interest is payable for the relevant Loan, and such additional interest
so notified to the relevant Borrower by such Lender shall be payable to the
Administrative Agent for the account of such Lender on each date on which
interest is payable for such Loan.
SECTION 2.20. Foreign Subsidiary Costs. (a) If the cost to any
------------------------
Lender of making or maintaining any Loan to a Borrowing Subsidiary is increased
(or the amount of any sum received or receivable by any Lender (or its
applicable lending office) is reduced) by an amount deemed in good faith by such
Lender to be material, by reason of the fact that such Borrowing Subsidiary is
incorporated in, or conducts business in, a jurisdiction outside the United
States, such Borrowing Subsidiary shall indemnify such Lender for such increased
cost or reduction within 15 days after demand by such Lender (with a copy to the
Administrative Agent). A certificate of such Lender claiming compensation under
this paragraph and setting forth the additional amount or amounts to be paid to
it hereunder (and the basis for the calculation of such amount or amounts) shall
be conclusive in the absence of manifest error.
(b) Each Lender will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge that will entitle
such Lender to additional interest or payments pursuant to paragraph (a) above,
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 2.20 in
39
respect of any costs resulting from such event, only be entitled to payment
under this Section 2.20 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, in the judgment of such
Lender, such designation will avoid the need for, or reduce the amount of, such
compensation and will not be otherwise disadvantageous to such Lender.
ARTICLE III
Representations and Warranties
------------------------------
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. The Company and each Borrowing
--------------------
Subsidiary is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
-----------------------------
within each Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has
been duly executed and delivered by each Borrower and constitutes, and each
other Loan Document to which any Borrower is to be a party, when executed and
delivered by such Borrower, will constitute, a legal, valid and binding
obligation of such Borrower, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
------------------------------------
require no action by or in respect of, or filing with, any governmental body,
agency or official (other than (i) Exchange Act reporting requirements and (ii)
actions which have been taken, and filings which have been made, and are in full
force and effect) and do not and will not contravene, or constitute a default
under, any provision of applicable law or regulation or of the Amended Articles
of Incorporation or Regulations (or comparable documents) of the Company or any
Borrowing Subsidiary or of any agreement for borrowed money or other material
agreement binding upon the Company or any Borrowing Subsidiary.
40
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
-----------------------------------------------
The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 1998, reported on by Ernst & Young LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended September 30, 1999. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Company and the consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clause (ii) above.
(b) As of the date of this Agreement, there has been no material
adverse change in the business, financial position or results of operations of
the Company and the consolidated Subsidiaries, taken as a whole, since December
31, 1998 (other than those changes relating to or arising out of, directly or
indirectly, the acquisition of LucasVarity).
SECTION 3.05. Litigation and Environmental Matters. (a) As of the
------------------------------------
date of this Agreement, there are no material legal proceedings, other than
ordinary routine litigation incidental to the business, to which the Company or
any of the consolidated Subsidiaries is a party or to which any of their
respective properties is subject that are required to be disclosed in the
Company's periodic reports under the Exchange Act and that have not been so
disclosed or that involve this Agreement, any other Loan Document or the
Transactions.
(b) The Company has established accruals for matters that are
probable and reasonably estimable as required by FASB Statement No. 5,
"Accounting for Contingencies." To the Company's knowledge, any liability that
may result from the resolution of known environmental matters in excess of
amounts accrued therefor will not have a Material Adverse Effect.
SECTION 3.06. Investment and Holding Company Status. Neither the
-------------------------------------
Company nor any of the Borrowing Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.07. Taxes. As of the date of this Agreement, the Company
-----
and the consolidated Subsidiaries have timely filed or caused to be filed all
material Tax returns and reports required to have been filed and has paid or
caused to be paid all Taxes required to have been paid by it, except (a) Taxes
that are being contested in good faith by appropriate proceedings and for which
the Company or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
41
SECTION 3.08. ERISA. As of the date of this Agreement, no ERISA
-----
Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to
occur, could reasonably be expected to result in a Material Adverse Effect. As
of the date of this Agreement, each member of the controlled group of
corporations (as defined in Section 414(b) of the Code) which includes the
Company has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each defined benefit plan maintained by the
Company and the consolidated Subsidiaries.
SECTION 3.09. Year 2000. As of the date of this Agreement, there has
---------
not occurred, and the Company does not expect that there will occur, any
material disruption in the operations or business systems of the Company or the
consolidated Subsidiaries, taken as a whole, resulting from the inability of
computer systems of the Company and the consolidated Subsidiaries or equipment
containing embedded microchips to recognize or properly process dates in or
following the year 2000.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
--------------
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received the favorable
written opinions (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of the General Counsel of the Company,
substantially in the form of Exhibit C, and covering such other matters
relating to the Borrowers, this Agreement, the other Loan Documents or the
Transactions as the Administrative Agent or the Required Lenders shall
reasonably request. The Borrowers hereby request such counsel to deliver
such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
of the Borrowers,
42
the authorization of the Transactions and any other legal matters relating
to the Borrowers, this Agreement, the other Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Company, confirming compliance with the conditions
set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Company hereunder or under any
other Loan Document.
(f) All loans outstanding under the Existing Credit Agreements shall
have been repaid, together with accrued interest and facility fees due
thereunder, and the Existing Credit Agreements shall have been terminated.
The Administrative Agent shall notify the Company and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 10.02) on or prior to January 25, 2000
(and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
------------------
make a Loan on the occasion of any Borrowing is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Borrowers set forth in
this Agreement shall be true and correct on and as of the date of such
Borrowing (except that, in the case of the representations and warranties
set forth in Section 3.04(b), Section 3.05, Section 3.07, Section 3.08 and
Section 3.09, such representations and warranties shall be true and correct
on and as of the date of this Agreement).
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrowers on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
43
SECTION 4.03. Initial Credit Event for each Borrowing Subsidiary.
---------------------------------------------------
The obligation of each Lender to make Loans to any Borrowing Subsidiary is
subject to the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have received
such Borrowing Subsidiary's Borrowing Subsidiary Agreement duly executed by
all parties thereto.
(b) The Administrative Agent shall have received a favorable written
opinion of counsel for such Borrowing Subsidiary reasonably satisfactory to
the Administrative Agent, substantially in the form of Exhibit D and
covering such other matters relating to such Borrowing Subsidiary or its
Borrowing Subsidiary Agreement as the Administrative Agent shall reasonably
request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of such
Borrowing Subsidiary, the authorization of the Transactions insofar as they
relate to such Borrowing Subsidiary and any other legal matters relating to
such Borrowing Subsidiary, its Borrowing Subsidiary Agreement or such
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Company covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
-------------------------------------------
Company will furnish to the Administrative Agent and each Lender:
(a) promptly upon the availability thereof and in any event within
120 days after each fiscal year, a copy of the Company's Annual Report to
Shareholders and its Annual Report on Form 10-K for the fiscal year then
ended, as filed with the Securities and Exchange Commission and which will
include an annual audit report of the Company, prepared on a consolidated
basis and in accordance with the Company's then current method of
accounting, which method must be in accordance with GAAP, duly certified by
independent certified public accountants of nationally recognized standing
selected by the Company;
44
(b) promptly upon the availability thereof and in any event within 60
days after each fiscal quarter (except the last fiscal quarter) of each
fiscal year, a copy of the Company's Quarterly Report on Form 10-Q for the
fiscal quarter then ended, as filed with the Securities and Exchange
Commission;
(c) contemporaneously with the furnishing of a copy of each Annual
Report on Form 10-K provided for in paragraph (a) and of each Quarterly
Report on Form 10-Q provided for in paragraph (b), a duly completed
certificate of a Financial Officer of the Company in the form of Exhibit F
(each such certificate called a "Compliance Certificate"), showing
----------------------
compliance with the covenants set forth in Sections 6.07 and 6.08, and
certifying that no Default or Event of Default has occurred and is
continuing or, if there is any such an event, describing it and the steps,
if any, being taken to cure it;
(d) within five Business Days after any Financial Officer obtains
knowledge of any Default, if such Default is then continuing, a certificate
of a Financial Officer setting forth the details thereof and the action
which the Company is taking or proposes to take with respect thereto;
(e) promptly upon the filing thereof, copies of each Current Report
on Form 8-K filed by the Company with the SEC; and
(f) from time to time such additional information concerning the
Company as the Administrative Agent, at the request of any Lender, may
reasonably request.
Information required to be delivered pursuant to paragraph (a), (b) or (e) above
shall be deemed to have been delivered on the date on which the Company provides
notice to the Lenders that such information has been posted on the Company's
website on the internet at the website address listed on the signature pages
hereof, at xxx.xxx/xxxxx/xxxxxxxx. htm or at another website identified in such
notice and accessible by the Lenders without charge; provided that (i) such
--------
notice may be included in a certificate delivered pursuant to paragraph (c)
above and (ii) the Company shall deliver paper copies of the information
referred to in paragraph (e) above to any Lender which requests such delivery.
SECTION 5.02. Existence; Conduct of Business. The Company will, and
-------------------------------
will cause each of the Borrowing Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business; provided that the foregoing shall not prohibit
--------
any merger, consolidation, liquidation or dissolution permitted under Section
6.04.
45
SECTION 5.03. Use of Proceeds. The Borrowers will use the proceeds
----------------
of the Loans only for general corporate purposes, including commercial paper
backup and the financing of acquisitions. No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations U and X.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Company covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness of Subsidiaries. The Company will not
-----------------------------
permit the sum of (a) the aggregate outstanding principal amount of Indebtedness
of Subsidiaries (other than Permitted Subsidiary Indebtedness) and (b) Specified
Company Indebtedness at any time to exceed 15% of Consolidated Net Assets.
SECTION 6.02. Mortgages. The Company will not, and will not permit
----------
any Domestic Subsidiary to, directly or indirectly, create or assume any
mortgage, encumbrance, lien, pledge, charge, or security interest of any kind
(collectively and individually, a "Mortgage") upon or in any of its interests in
any Principal Property or upon or in any shares of capital stock or Indebtedness
of any Domestic Subsidiary, whether such interest, capital stock or Indebtedness
is now owned or hereafter acquired, if such mortgage secures or is intended to
secure, directly or indirectly, the payment of any Indebtedness; excluding,
however, from the operation of this Section 6.02:
(a) Mortgages on any Principal Property acquired, constructed, or
improved by the Company or any Domestic Subsidiary after January 1, 2000,
which are created or assumed contemporaneously with, or within 120 days
after, such acquisition or completion of such construction or improvement
to secure or provide for the payment of any part of the purchase price of
such Principal Property or the cost of such construction or improvement
incurred after January 1, 2000, or, in addition to Mortgages contemplated
by clauses (b) and (c) below, Mortgages on any such Principal Property
existing at the time or placed thereon at the time of acquisition or
leasing thereof by the Company or any Domestic Subsidiary, or conditional
sales agreements or other title retention agreements with respect to any
Principal Property now owned or leased or hereafter acquired or leased by
the Company or a Domestic Subsidiary;
46
(b) Mortgages on property (including shares of capital stock or
Indebtedness of a corporation) of a corporation existing at the time such
corporation becomes a Domestic Subsidiary or is merged or consolidated with
the Company or a Domestic Subsidiary or existing at the time of a sale,
lease, or other disposition of the properties of such corporation (or a
division thereof) or other Person as an entirety or substantially as an
entirety (which includes the sale, lease, or other disposition of all or
substantially all the assets thereof) to the Company or a Domestic
Subsidiary, provided that no such Mortgage shall extend to any other
Principal Property of the Company or any Domestic Subsidiary or to any
shares of capital stock or any Indebtedness of any Domestic Subsidiary;
(c) Mortgages created by the Company or a Domestic Subsidiary to
secure Indebtedness of the Company or a Domestic Subsidiary to the Company
or to a wholly owned Subsidiary;
(d) Mortgages in favor of the United States of America or any State,
territory or possession thereof, or any foreign country or any department,
agency, instrumentality, or political subdivision of any of such domestic
or foreign jurisdictions to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any Indebtedness
incurred for the purpose of financing all or any part of the purchase price
of, or the cost of constructing, the property subject to such Mortgages;
(e) Mortgages for the sole purpose of extending, renewing, or
replacing (or successively extending, renewing, or replacing) in whole or
in part any mortgage existing on January 1, 2000, or referred to in the
foregoing clauses (a) to (d) inclusive or of any Indebtedness secured
thereby; provided, however, that the principal amount of Indebtedness
-------- -------
secured thereby shall not exceed the principal amount of Indebtedness so
secured at the time of such extension, renewal, or replacement and that
such extension, renewal, or replacement Mortgage shall be limited to all or
a part of the property which secured the Mortgage so extended, renewed, or
replaced (plus improvements on such property);
(f) Mortgages on Margin Stock, if and to the extent that the value of
such Margin Stock exceeds 25% of the total assets of the Company and its
Subsidiaries subject to this Section;
(g) Mortgages under which effective provision is made for all Loans
to be secured equally and ratably with any other Indebtedness secured,
directly or indirectly, thereby; and
(h) Mortgages (other than Mortgages permitted by any of the foregoing
clauses) if, at the time of creation or assumption thereof and after giving
effect
47
thereto, the aggregate principal amount of (i) the Indebtedness secured by
such Mortgages and (ii) the Attributable Indebtedness related to Sale and
Leaseback Transactions permitted under clause (b) of Section 6.03 does not
exceed 5% of Consolidated Net Assets, determined as of a date not more than
95 days prior to such creation or assumption.
SECTION 6.03. Sale and Lease-Back Transactions. (a) The Company will
---------------------------------
not, and will not permit any Domestic Subsidiary to, sell, lease or transfer any
Principal Property owned by the Company or a Domestic Subsidiary as an entirety,
or any substantial portion thereof, to anyone other than a Wholly Owned Domestic
Subsidiary (or the Company or a Wholly Owned Domestic Subsidiary in the case of
a Domestic Subsidiary) with the intention of taking back a lease of such
property (herein referred to as a "Sale and Leaseback Transaction") except a
------------------------------
lease for a period of not more than 36 months by the end of which it is intended
that the use of such property by the lessee will be discontinued; provided, that
--------
notwithstanding the foregoing, the Company or any Domestic Subsidiary may sell
any such property and lease it back if the net proceeds of such sale are at
least equal to the fair value (as determined by resolution adopted by the Board
of Directors of the Company) of such property, and (i) the Company or such
Domestic Subsidiary would be entitled pursuant to paragraphs (a)-(g) of Section
6.03 to create Indebtedness secured by a Mortgage on the property to be leased
in an amount equal to the Attributable Debt with respect to such Sale and
Leaseback Transaction without equally and ratably securing all the Loans, or
(ii) if such sale or transfer does not come within the exception provided by the
preceding clause (i), the net proceeds of such sale shall, and in any such case
the Company covenants that they will, within 120 days after such sale, be
applied (to the greatest extent possible) either to the repayment of the Loans
then outstanding when due (whereupon the Commitments shall be reduced, on a pro
rata basis, to the extent that such net proceeds are so applied) or to the
retirement of Consolidated Funded Debt of the Company ranking at least on a
parity with the Loans, or in part to one or more of such alternatives and in
part to another.
(b) Notwithstanding the provisions of paragraph (a) above, the Company
and/or any Domestic Subsidiary may enter into Sale and Leaseback Transactions
if, at the time of such entering into, and after giving effect thereto, the
aggregate amount of (i) Attributable Indebtedness related to such Sale and
Leaseback Transactions and (ii) Indebtedness secured by Mortgages permitted
under clause (h) of Section 6.02 does not exceed 5% of Consolidated Net Assets,
determined as of a date not more than 95 days prior to such creation or
assumption.
SECTION 6.04. Fundamental Changes. The Company will not merge into
--------------------
or consolidate with any other Person, or permit any other Person to merge into
or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired), or liquidate or dissolve,
except that, if at the time thereof and immediately
48
after giving effect thereto no Default shall have occurred and be continuing (i)
any Person may merge into the Company in a transaction in which the Company is
the surviving corporation and (ii) the Company may merge into or consolidate
with any other Person in a transaction the primary purpose of which is to effect
a reincorporation of the Company under the laws of another state.
SECTION 6.05. ERISA. The Company will not allow an ERISA Event to
------
occur that, when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in a Material Adverse Effect.
SECTION 6.06. Change in Control. The Company will not permit to
------------------
occur any Change in Control.
SECTION 6.07. Interest Coverage Ratio. The Company will not permit
------------------------
the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Expense, in
each case for any period of four consecutive fiscal quarters ending after the
date hereof, to be less than 3.00 to 1.00.
SECTION 6.08. Minimum Consolidated Net Worth. The Company will not
-------------------------------
permit Consolidated Net Worth to be less, at any date, than the sum of (i)
$1,600,000,000, (ii) 50% of Consolidated Net Income for each completed fiscal
quarter of the Company that shall have begun after December 31, 1999 (excluding
any fiscal quarter for which Consolidated Net Income is negative), and (iii) 50%
of the amount by which Consolidated Net Worth is increased after the date hereof
as a result of issuances of equity securities by the Company.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) default in the payment when due of any principal of any Loan or
default in the payment when due of interest on any Loan or fees payable by
any Borrower hereunder and continuance of such failure to pay interest or
fees for five Business Days after written notice thereof to the Company
from the Administrative Agent at the request of the Lender to which such
amounts are owed;
(b) a default in the payment when due at maturity or on the date of
any required prepayment, redemption or repurchase (subject to any
applicable grace period) or by acceleration of any Material Indebtedness,
or a default in the
49
performance or observance of any obligation or condition with respect to
any Material Indebtedness if such default results in the acceleration of
the maturity of such Material Indebtedness; provided that, if any such
--------
default shall subsequently be remedied, cured, or waived prior to either
the termination of the Commitments or the declaration that all Loans are
immediately due and payable, in each case pursuant to this Article VII, and
as a result the payment of such Material Indebtedness is no longer due, the
Event of Default existing hereunder by reason thereof shall likewise be
deemed thereupon to be remedied, cured, or waived and no longer in
existence, all without any further action by the parties hereto;
(c) the Company or any Material Subsidiary generally fails to pay, or
admits in writing its inability to pay, debts as they become due; or the
Company or any Material Subsidiary applies for, consents to, or acquiesces
in the appointment of, a trustee, receiver, or other custodian for the
Company or any Material Subsidiary or for a substantial part of the
property thereof, or makes a general assignment for the benefit of
creditors; or, in the absence of such application, consent or acquiescence,
a trustee, or receiver, or other custodian is appointed for the Company or
any Material Subsidiary or for a substantial part of the property of the
Company or any Material Subsidiary; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution or liquidation proceeding is commenced in respect
of the Company or any Material Subsidiary and if such case or proceeding is
not commenced by the Company or any Material Subsidiary, it is consented to
or acquiesced in by the Company or any Material Subsidiary or remains for
90 consecutive days undismissed or unstayed; or the Company or any Material
Subsidiary takes any corporate action to authorize any of the foregoing;
(d) failure by the Company to comply with or to perform in any
material respect any provision of this Agreement (provided that in the case
--------
of the provisions of Article VI, the preceding standard shall be applied
without regard to materiality) (which failure does not constitute an Event
of Default under any of the preceding subsections of this Article VII) and,
in the case of any provision contained in Article V or in Section 6.01,
6.02, 6.03 or 6.05, continuance of such failure for 30 days after written
notice thereof to the Company from the Administrative Agent at the request
of Required Lenders;
(e) any representation or warranty made by the Company in Article III
of this Agreement or by any other Borrower in the applicable Borrowing
Subsidiary Agreement is breached or is incorrect when made (or deemed made)
in any material respect and, with respect to any representation or warranty
other than those contained in Sections 3.04(b), 3.05, 3.07, 3.08 and 3.09,
the Company shall fail to take corrective actions reasonably satisfactory
to the Required Lenders within 30 days after written notice thereof to the
Company from the Administrative Agent at the request of the Required
Lenders;
50
(f) any final and nonappealable judgment or order from a judicial or
administrative body (which order or judgment is fully enforceable against
the Company or a Borrowing Subsidiary, as the case may be, in courts of the
United States of America or any state thereof) for the payment of money in
excess of $100,000,000 (after adjustments to reflect reductions for credits
and set-offs asserted in good faith by the Company or such Borrowing
Subsidiary shall be rendered against the Company or a Borrowing Subsidiary,
shall not have been discharged or vacated and shall have been in effect, in
its final and unappealable form, for a period of 30 consecutive days;
(g) the Guarantee of the Company set forth in Article IX shall cease
at any time to be in full force and effect, or any party hereto (other than
a Lender) shall so assert in writing;
then, and in every such event (other than an event with respect to any Borrower
described in clause (c) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by each Borrower; and in case of any
event with respect to any Borrower described in clause (c) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by each Borrower.
The Administrative Agent shall give notice to the Company (i) under
paragraph (a) above promptly upon being requested to do so by the relevant
Lender and (ii) under paragraphs (d) and (e) above promptly upon being requested
to do so by the Required Lenders and, in each case, after having done so, shall
notify all the Lenders thereof.
51
ARTICLE VIII
The Agents
----------
In order to expedite the transactions contemplated by this Agreement,
Chase is hereby appointed to act as Administrative Agent and CMIL is hereby
appointed to act as London Agent, on behalf of the Lenders. Each of the Lenders
and each assignee of any such Lender hereby irrevocably authorizes the Agents to
take such actions on behalf of such Lender or assignee and to exercise such
powers as are delegated to the Agents by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates in their respective individual capacities may
accept deposits from, lend money to and generally engage in any kind of business
with the Company or any Subsidiary or other Affiliate thereof as if it were not
an Agent.
The Agents shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) no Agent shall be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) no
Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that such Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.02), and (c) except as expressly set forth in the Loan Documents, no Agent
shall have any duty to disclose, and no Agent shall be liable for the failure to
disclose, any information relating to the Company or any of its Subsidiaries
that is communicated to or obtained by the institution serving as Agent or any
of its Affiliates in any capacity. No Agent shall be liable for any action
taken or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 10.02) or in the absence of its
own culpable negligence, bad faith or wilful misconduct. No Agent shall be
deemed to have knowledge of any Default other than a Default of the types
specified in clause (a) and (b) of Article VII unless and until written notice
thereof is given to such Agent by a Borrower or a Lender, and the Agent shall
not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with the Loan
Documents, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness or
genuineness of the
52
Loan Documents or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it in good faith to
be genuine and to have been signed or sent by the proper Person. Each Agent also
may rely upon any statement made to it orally or by telephone and believed by it
in good faith to be made by the proper Person, and shall not incur any liability
for relying thereon. Each Agent may consult with legal counsel (who may be
counsel for any Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by such Agent.
Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such sub-
agent and to the Related Parties of such Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders and the Company. Upon any such resignation, the Required Lenders shall
have the right, in consultation with the Company, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Company and such successor. After the Agent's resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Agent.
53
Each Lender acknowledges that it has, independently and without
reliance upon the Agents 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 the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.
None of the Syndication Agent or the Co-Documentation Agents, in their
capacities as such, shall have any duties or obligations of any kind under this
Agreement.
ARTICLE IX
Guarantee
---------
The Company hereby unconditionally, absolutely and irrevocably
guarantees, as primary obligor and not merely as surety, the repayment to each
Lender, when due pursuant to the terms and conditions of this Agreement, of the
amount of any Loan made pursuant to this Agreement to a Borrowing Subsidiary,
together with accrued interest on such Loan, at the place and in the currency
and manner specified in this Agreement; provided, however, that before any
-------- -------
amount shall be deemed due and payable pursuant to this Guarantee, the
Administrative Agent must first give notice to the Company of the nonpayment
thereof by the Borrowing Subsidiary at the request of the relevant Lender, and
the Company shall have five Business Days from the receipt of such notice to
cure or cause to be cured any and all such nonpayments. The Company's
obligations hereunder constitute a guaranty of payment and not of collection
merely. The Company hereby waives notice of, and consents to, any extensions of
time of payment, renewals, compromises, settlements, releases or other
indulgences from time to time granted by the Lenders in respect of Loans made to
Borrowing Subsidiaries. Except as otherwise provided in this Article IX, the
Company hereby waives presentment, protest, demand of payment, notice of
dishonor and all notices and demands whatsoever. The obligations of the Company
hereunder shall not be released, discharged or otherwise affected by (i) any
change in the corporate existence or constitution, structure or ownership of any
Borrowing Subsidiary or the Company, (ii) any insolvency, bankruptcy,
reorganization or similar proceeding affecting the Borrowing Subsidiary or its
assets or the Company or (iii) the existence of any claim, set-off or other
rights which the Company may have at any time against any Lender or any other
Person. If at any time any payment of any obligation guaranteed hereunder is
rescinded or must otherwise be restored or returned upon the insolvency,
bankruptcy or reorganization of a Borrowing Subsidiary or otherwise, the
Company's obligations under this Article IX with respect to such payment shall
be reinstated at such time as though such payment had not been made.
54
If acceleration of the time for payment of any amount payable by any Borrowing
Subsidiary under this Agreement or its Loans is stayed upon any bankruptcy,
insolvency or reorganization of such Borrowing Subsidiary or otherwise, all such
amounts otherwise subject to acceleration under the terms of this Agreement
shall nonetheless be payable by the Company pursuant to this Article IX in
accordance with the terms hereof. The Company shall not exercise any of its
subrogation rights with respect to amounts paid to a Lender pursuant to this
Article IX until all amounts guaranteed hereunder payable to any Lender have
been paid in full and the Commitments have terminated. Following such payment in
full and termination of the Commitments, the Company shall be entitled to
subrogation in the Lenders' rights and, upon the reasonable request of the
Company, each Lender agrees to cooperate with the Company in enforcement of the
Company's subrogation rights, including the transfer and delivery by such Lender
to the Company of any and all related evidence of indebtedness within the
possession or control of such Lender.
The Company further agrees that if payment in respect of any
obligation of a Borrowing Subsidiary guaranteed hereunder shall be due in a
currency other than Dollars and/or at a place of payment other than New York and
if, by reason of any legal prohibition, disruption of currency or foreign
exchange markets, war or civil disturbance or other event, payment of such
obligation in such currency or at such place of payment shall be impossible or,
in the judgment of any Lender, not consistent with the protection of its rights
or interests, then, at the election of such Lender, the Company shall make
payment of such obligation in Dollars (based upon the applicable Exchange Rate
in effect on the date of payment) and/or in New York.
The Administrative Agent shall give notice to the Company pursuant to
the proviso set forth in the first sentence of this Article promptly upon being
requested to do so by the relevant Lender.
ARTICLE X
Miscellaneous
-------------
55
SECTION 10.01. Notices. Except in the case of notices and other
-------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to any Borrower, to it in care of the Company at 0000 Xxxxxxxx
Xxxx, Xxxxxxxxx, Xxxx 00000, Attention of Xxxxxx X. Xxxxx, Vice President
and Treasurer (Telecopy No. (000) 000-0000), with a copy to TRW Inc., 0000
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000, Attention of Secretary (Telecopy No.
(000) 000-0000);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xxxxx Xxxx (Telecopy No. (000) 000-0000), with
a copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx 00000,
Attention of Xxxxx Xxx Xxxxx (Telecopy No. (000) 000-0000);
(c) if to the London Agent, to it at Chase Manhattan International
Limited, Trinity Tower, 9 Xxxxxx Xxxx Street, London, England E19YT
Attention of Loans Agency Division (Telecopy No. 011-44-171-777-2360); with
a copy to the Administrative Agent as provided in paragraph (b) above; and
(d) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by the
-------------------
Administrative Agent or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Borrower therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any
Default,
56
regardless of whether the Administrative Agent or any Lender may have had notice
or knowledge of such Default at the time.
(b) Neither this Agreement nor any of the Loan Documents nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Company and the
Required Lenders or by the Company and the Applicable Agent with the consent of
the Required Lenders (and, in the case of a Borrowing Subsidiary Agreement, the
applicable Borrowing Subsidiary); provided that no such agreement shall (i)
--------
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or any
fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.16(b)
or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender, or (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision of any Loan Document specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
----------------
otherwise affect the rights or duties of the Administrative Agent hereunder
without the prior written consent of the Administrative Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The Company
----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and the London Agent and each of their Affiliates,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Xxxxx, counsel for the Administrative Agent and London Agent, in connection with
the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions contemplated hereby or thereby shall be consummated) and (ii)
all out-of-pocket expenses incurred by the Administrative Agent, the London
Agent or any Lender, including the reasonable fees, charges and disbursements of
any counsel for the Administrative Agent, the London Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
any Loan Document, including its rights under this Section, or in connection
with the Loans made hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans.
(b) The Company agrees to indemnify each Lender, their respective
Affiliates and the respective directors, officers, agents and employees of the
foregoing
57
(each an "Indemnitee") and hold each Indemnitee harmless from and against any
----------
and all losses, damages, liabilities, costs and related expenses of any kind,
including, without limitation, reasonable fees and disbursements of counsel,
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 such indemnity shall not, as to any Indemnitee, be available to
--------
the extent that such losses, damages, liabilities, costs or related expenses are
found by a final, nonappealable judgment of a court of competent jurisdiction to
have resulted from the culpable negligence, bad faith or wilful misconduct of
such Indemnitee.
(c) To the extent that the Company fails to pay any amount required
to be paid by it to the Administrative Agent, the London Agent or any sub-agent
appointed pursuant to Article VIII under paragraph (a) or (b) of this Section,
each Lender severally agrees to pay to the Administrative Agent or the London
Agent such Lender's Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim,
--------
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent or London Agent in its capacity as
such.
(d) To the extent permitted by applicable law, no Borrower shall
assert, and each Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby, the Transactions, any Loan or the
use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 10.04. 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 permitted hereby, except that no
Borrower may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by any Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
58
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
--------
except in the case of an assignment to an Affiliate of that Lender, each of the
Company and the Administrative Agent must give their prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed),
(ii) except in the case of an assignment to an Affiliate of that Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment,
the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than $10,000,000 unless each of the Company and the Administrative Agent
otherwise consent, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not apply to rights in
respect of outstanding Competitive Loans, (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500, and (v)
the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire; and provided further that any consent of
----------------
the Company otherwise required under this paragraph shall not be required if an
Event of Default under clause (h) or (i) of Article VII has occurred and is
continuing. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.13, 2.14, 2.15 and 10.03, insofar as claims under such sections arise out of
the period prior to the effective date of such Assignment and Acceptance). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
each Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
--------
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
59
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Company and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of any Borrower or the
Administrative Agent sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
-----------
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
--------
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrowers, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
--------
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, each Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and
2.15 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13, 2.14 or 2.15 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Company's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.15
unless the Company is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of the Borrowers, to comply with
Section 2.15(e) as though it were a Lender.
60
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
--------
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 10.05. Survival. All covenants, agreements, representations
--------
and warranties made by the Borrowers herein or in any other Loan Document and in
the certificates or other instruments delivered in connection with or pursuant
to this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and thereto and shall survive the
execution and delivery of this Agreement and any other Loan Document and the
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder
(provided that any such knowledge of the Administrative Agent or any Lender will
not be attributed to any other Lender or the Administrative Agent for purposes
of this Section 10.05), and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any fee or any other
amount payable under this Agreement or any other Loan Document is outstanding
and unpaid and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.13, 2.14, 2.15 and 10.03 and Article VIII shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Commitments or the termination of this Agreement or any other
Loan Document or any provision hereof or thereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
----------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
61
SECTION 10.07. Severability. Any provision of this Agreement held to
------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall have
---------------
occurred and be continuing and the Required Lenders shall have requested the
Administrative Agent to declare the Loans immediately due and payable or such
Loans have automatically become due and payable, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or the account of any Borrower against any of and all the obligations of
such Borrower now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. The rights
of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and governed
-------
by the law of the State of New York.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against any Borrower or its properties in the courts of
any jurisdiction.
(c) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or
62
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any other Loan Document in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
---------------------
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article and Section headings and the Table
---------
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Administrative Agent,
----------------
the London Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this
63
Section, to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Company or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to the Administrative Agent, the London Agent or any Lender on
a nonconfidential basis from a source other than the Company. For the purposes
of this Section, "Information" means all information received from the Company
-----------
relating to the Company or its business, other than any such information that is
available to the Administrative Agent, the London Agent or any Lender on a
nonconfidential basis prior to disclosure by the Company; provided that, in the
--------
case of information received from the Company after the date hereof, such
information is clearly identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 10.13. Conversion of Currencies. (a) If, for the purpose
-------------------------
of obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto (including
any Borrowing Subsidiary) agrees, to the fullest extent that it may effectively
do so, that the rate of exchange used shall be that at which in accordance with
normal banking procedures in the relevant jurisdiction the first currency could
be purchased with such other currency on the Business Day immediately preceding
the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
----------
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
-------- --------
Currency") other than the currency in which such sum is stated to be due
--------
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
------------------
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 10.13 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
64
SECTION 10.14. Interest Rate Limitation. Notwithstanding anything
-------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.15. Lender Waiver. Each Lender that is a party to any of
-------------
the Existing Credit Agreements hereby waives any provision contained in such
Existing Credit Agreement requiring notice of the termination of the commitments
therein prior to the effective date of such termination.
65
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.
TRW INC.,
by /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President and Treasurer
Website: xxx.xxx.xxx
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent,
by /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
CHASE MANHATTAN INTERNATIONAL LIMITED, as London
Agent,
by /s/ Xxxxx Xxxx
----------------------------------------
Name: Xxxxx Xxxx
Title: Assistant Treasurer
XXXXXXX XXXXX XXXXXX INC., as Syndication Agent,
Joint Lead Arranger and Book Manager,
by /s/ J.C.C. Xxxxx, Jr.
----------------------------------------
Name: J.C.C. Xxxxx, Jr.
Title: Attorney-in-Fact
66
CHASE SECURITIES, INC., as Joint Arranger and Book
Manager,
by /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
CITICORP USA, INC.,
by /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-in-Fact
BANK OF AMERICA, N.A., Individually and as Co-
Documentation Agent,
by /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Documentation Agent,
by /s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES,
by /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
by /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
ROYAL BANK OF CANADA,
by /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager
BANQUE NATIONALE DE PARIS,
by /s/ Xxxxxx Xxxxxx du Bocage
---------------------------------------
Name: Xxxxxx Xxxxxx du Xxxxxx
Title: Executive Vice President and
General Manager
NATIONAL CITY BANK,
by /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
INDUSTRIAL BANK OF JAPAN,
by /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Joint General Manager
BANK ONE, MICHIGAN,
by /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: First Vice President
COMERICA BANK,
by /s/ Xxxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Account Officer
KEYBANK NATIONAL ASSOCIATION,
by /s/ Xxxxxxxx X. Xxxx
---------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
BAYERISCHE LANDESBANK,
by /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
by /s/ Xxxxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxx
Title: First Vice President
HSBC BANK USA,
by /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: Officer #9426, Vice President
SG,
by /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXXXXXX'X BANK PLC,
by /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
CREDIT INDUSTRIAL ED COMMERCIAL,
by /s/ Xxxxxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxxxx
Title: Senior Vice President
DEUTSCHE BANK AG, New York Branch
and/or Cayman Islands Branch,
by /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
by /s/ Xxxxxxx Peetzen
---------------------------------------
Name: Xxxxxxx Peetzen
Title: Director
ABN AMRO BANK N.V.,
by /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
by /s/ Xxxx X. Xxxx
---------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
BANCA DI ROMA-CHICAGO BRANCH,
by /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
by /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx (19690)
Title: Senior Vice President &
Branch Manager
THE SUMITOMO BANK, LIMITED,
by /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BANCA NAZIONALE DEL LAVORO
S.p.A. - NEW YORK,
by /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
by /s/ Xxxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: First Vice President
MELLON BANK, N.A.,
by /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: First Vice President
SAN PAOLO IMI S.p.A.,
by /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
by /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: D.G.M.
BANCA COMMERCIALE ITALIANA,
CHICAGO BRANCH,
by /s/ X. Xxxxxxx
---------------------------------------
Name: X. Xxxxxxx
Title: FVP/Deputy Manager
by /s/ X. Xxxxxxxxx
---------------------------------------
Name: X. Xxxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
by /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
BANK OF NEW YORK,
by /s/ Xxxx X. Xxxxx, Xx.
---------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
BANCO BILBAO VIZCAYA (NEW YORK),
by /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
by /s/ Xxxxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
