$550,000,000
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
among
ARROW ELECTRONICS, INC.,
THE SUBSIDIARY BORROWERS,
The Several Banks from Time to Time Parties Hereto,
THE BANK OF NOVA SCOTIA,
BANK ONE, NA,
BANQUE NATIONALE DE PARIS, NEW YORK BRANCH,
DEN DANSKE BANK AKTIESELSKAB,
HSBC BANK USA, and MELLON BANK, N.A.,
as Co-Agents
BANK OF AMERICA, N.A.,
as Syndication Agent
FLEET BANK, N.A.,
as Documentation Agent
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
CHASE SECURITIES INC.,
as Arranger
Dated as of March 24, 2000
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 2
1.1 Defined Terms 2
1.2 Other Definitional Provisions 21
1.3 Accounting Determinations 21
SECTION 2. THE COMMITTED RATE LOANS 22
2.1 Committed Rate Loans 22
2.2 Procedure for Committed Rate Loan Borrowing 22
2.3 Repayment of Committed Rate Loans; Evidence of Debt 23
2.4 Termination or Reduction of Commitments 23
2.5 Optional Prepayments 23
2.6 Conversion and Continuation Options 24
2.7 Minimum Amounts of Tranches 24
2.8 Interest Rates and Payment Dates for Committed Rate Loans 24
2.9 Inability to Determine Interest Rate 25
SECTION 3. THE COMPETITIVE ADVANCE LOANS 26
3.1 Competitive Advance Loans 26
3.2 Procedure for Competitive Advance Loan Borrowing 26
3.3 Repayment of Competitive Advance Loans; Evidence of Debt 28
3.4 Prepayments 28
SECTION 4. THE SWING LINE LOANS 29
4.1 Swing Line Loans 29
4.2 Procedure for Swing Line Borrowing 29
4.3 Repayment of Swing Line Loans; Evidence of Debt 29
4.4 Allocating Swing Line Loans; Swing Line Loan Participations 30
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANS 32
5.1 Facility Fee; Utilization Fee; Other Fees; Other Payments 32
5.2 Computation of Interest and Fees 32
5.3 Pro Rata Treatment and Payments 33
5.4 Illegality 34
5.5 Requirements of Law 34
5.6 Taxes 36
5.7 Company's Options upon Claims for Increased Costs and Taxes 38
5.8 Indemnity 39
5.9 Determinations 40
5.10 Change of Lending Office 40
5.11 Company Controls on Exposure; Calculation of Exposure;
Prepayment if Exposure exceeds Commitments 40
5.12 Extensions of Termination Date for Commitments 41
SECTION 6. REPRESENTATIONS AND WARRANTIES 42
6.1 Financial Condition 43
6.2 No Change 43
6.3 Corporate Existence; Compliance with Law 43
6.4 Corporate Power; Authorization; Enforceable Obligations 44
6.5 No Legal Bar 44
6.6 No Material Litigation 44
6.7 No Default 44
6.8 Ownership of Property; Liens 44
6.9 Intellectual Property 45
6.10 Year 2000 Matters 45
6.11 Taxes 45
6.12 Federal Regulations 46
6.13 ERISA 46
6.14 Investment Company Act; Other Regulations 47
6.15 Subsidiaries 47
6.16 Accuracy and Completeness of Information 47
6.17 Purpose of Loans 47
6.18 Senior Indebtedness 48
6.19 Environmental Matters 48
SECTION 7. CONDITIONS PRECEDENT 49
7.1 Conditions to Closing Date 49
7.2 Conditions to Each Loan 51
SECTION 8. AFFIRMATIVE COVENANTS 52
8.1 Financial Statements 52
8.2 Certificates; Other Information 53
8.3 Payment of Obligations 54
8.4 Conduct of Business and Maintenance of Existence 54
8.5 Maintenance of Property; Insurance 55
8.6 Inspection of Property; Books and Records; Discussions 55
8.7 Notices 55
8.8 Environmental Laws 56
8.9 Additional Subsidiary Guarantees 56
SECTION 9. NEGATIVE COVENANTS 56
9.1 Financial Condition Covenants 56
9.2 Limitation on Indebtedness of Domestic Subsidiaries 57
9.3 Limitation on Liens 57
9.4 Limitation on Fundamental Changes 58
9.5 Limitation on Modifications of Debt Instruments 58
SECTION 10. EVENTS OF DEFAULT 59
SECTION 11. THE ADMINISTRATIVE AGENT; THE ARRANGER AND
OTHER AGENTS 61
11.1 Appointment 61
11.2 Delegation of Duties 62
11.3 Exculpatory Provisions 62
11.4 Reliance by Administrative Agent 62
11.5 Notice of Default 63
11.6 Non-Reliance on Administrative Agent and Other Banks 63
11.7 Indemnification 63
11.8 Administrative Agent in Its Individual Capacity 64
11.9 Successor Administrative Agent 64
11.10 The Arranger 65
SECTION 12. MISCELLANEOUS 65
12.1 Amendments and Waivers 65
12.2 Notices 67
12.3 No Waiver; Cumulative Remedies 68
12.4 Survival of Representations and Warranties 68
12.5 Payment of Expenses and Taxes 69
12.6 Successors and Assigns; Participations and Assignments 69
12.7 Adjustments; Set-off 72
12.8 Power of Attorney 73
12.9 Judgment 73
12.10 Counterparts 74
12.11 Severability 74
12.12 Integration 74
12.13 GOVERNING LAW 74
12.14 Submission To Jurisdiction; Waivers 74
12.15 Acknowledgments 75
12.16 WAIVERS OF JURY TRIAL 76
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT, dated as of March 24,
2000, among:
(i) ARROW ELECTRONICS, INC., a New York corporation (the "Company");
(ii) the SUBSIDIARY BORROWERS (as hereinafter defined);
(iii) the several banks and other financial institutions from time to
time parties to this Agreement (the "Banks");
(iv) THE BANK OF NOVA SCOTIA, BANK ONE, NA, BANQUE NATIONALE DE PARIS,
NEW YORK BRANCH, DEN DANSKE BANK AKTIESELSKAB, HSBC BANK USA and MELLON BANK,
N.A., as Co-Agents for the Banks hereunder (in such capacity, the "Co-
Agents");
(v) BANK OF AMERICA, N.A., as syndication agent for the Banks
hereunder (in such capacity, the "Syndication Agent");
(vi) FLEET BANK, N.A., as documentation agent for the Banks hereunder
(in such capacity, the "Documentation Agent"); and
(vii) THE CHASE MANHATTAN BANK, as administrative agent for the Banks
hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Company has requested the Banks to make available a 364-day
revolving credit facility that amends and restates the 364-Day Credit
Agreement, dated as of March 30, 1999, among the Company, certain of its
subsidiaries, certain financial institutions, Chase Securities Inc., as
arranger, and The Chase Manhattan Bank, as administrative agent (as in effect
on the date hereof, the "Existing Credit Agreement"); and
WHEREAS, the Banks are willing to make such credit facility available
upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree that, effective as of the
Closing Date (as defined below), the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONSSECTION 1. DEFINITIONS tc \l 1 "SECTION 1.
DEFINITIONS"
1.1 Defined Terms1.1 Defined Terms tc \l 2 "1.1 Defined Terms" . As
used in this Agreement, the following terms shall have the following
meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect on such day plus 2 of 1%. For
purposes hereof:
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by Chase as its prime rate in effect at its principal
office in New York City (the Prime Rate not being intended to be the lowest
rate of interest charged by Chase in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is
one and the denominator of which is one minus the C/D Reserve Percentage and
(b) the C/D Assessment Rate;
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on
such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of
the Federal Reserve Bank of New York (which rate will, under the current
practices of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if such rate shall not be
so reported on such day or such next preceding Business Day, the average of
the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00
a.m., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Administrative Agent
from three New York City negotiable certificate of deposit dealers of
recognized standing selected by it; and
"Federal Funds Effective Rate" shall mean, for any day, the weighted average
of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the
average of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the Federal Funds
Effective Rate, or both, for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the ABR shall be determined without regard to clause
(b) or (c), or both, of the first sentence of this definition, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the ABR due to a change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate shall be effective as of the opening
of business on the effective day of such change in the Prime Rate, the Base
CD Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans denominated in Dollars the rate of interest applicable
to which is based upon the ABR.
"Adjusted Consolidated EBITDA": for any fiscal period, (a) the Consolidated
Net Income of the Company and its Subsidiaries for such period, plus (b) to
the extent deducted from earnings in determining Consolidated Net Income for
such period, the sum, in each case for such period, of income taxes, interest
expense, depreciation expense, amortization expense, including amortization
of any goodwill or other intangibles, minus (c) to the extent included in
determining Consolidated Net Income for such period, non-cash equity earnings
of unconsolidated Affiliates, plus (d) to the extent excluded in determining
Consolidated Net Income for such period, cash distributions received by the
Company from unconsolidated Affiliates, all as determined on a consolidated
basis in accordance with GAAP.
"Administrative Schedule": Schedule IV to this Agreement, which contains
interest rate definitions and administrative information in respect of each
Currency and each Type of Loan.
"Administrative Agent": as defined in the preamble hereto.
"Affected Bank": any Bank affected by the events described in subsection
5.4, 5.5 or 5.6, as the case may be, but only for the period during which
such Bank shall be affected by such events.
"Affiliate": as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person or (b) any Person who is a
director or officer of the Company or any of its Subsidiaries. For purposes
of this definition, "control" of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the securities having ordinary
voting power for the election of directors of such Person or (ii) direct or
cause the direction of the management and policies of such Person, whether by
contract or otherwise.
"Agents": the collective reference to the Co-Agents, the Syndication Agent
and the Documentation Agent.
"Agreement": this Amended and Restated 364-Day Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Aggregate 1995 Exposure": at any time, the aggregate Exposure (as defined
in the 1995 Credit Agreement) of the Foreign Subsidiary Borrowers (as defined
in the 1995 Credit Agreement) and the Local Currency Borrowers (as defined in
the 1995 Credit Agreement).
"Allocable Share": as to any Assenting Bank at any time, a fraction, the
numerator of which shall be the Commitment of such Assenting Bank then in
effect and the denominator of which shall be the aggregate of the Commitments
of all Assenting Banks then in effect.
"Applicable Margin": for each Type of Loan on any date, the rate per annum
determined based upon the Rating in effect on such date by both S&P and
Xxxxx'x set forth under the relevant column heading below opposite such
Rating:
Rating
(S&P/Xxxxx'x)
Applicable Margin (in basis points) for Eurocurrency Loans
Greater than or equal to A/A2 29.50
Greater than or equal to A-/A3 30.00
Greater than or equal to BBB+/Baa1 37.50
Greater than or equal to BBB/Baa2 45.00
Greater than or equal to BBB-/Baa3 62.50
Less than or equal to BB+/Ba1 80.00
;provided that, in the event that the Ratings of S&P and Xxxxx'x do not
coincide, the Applicable Margin set forth above opposite the higher of such
Ratings will apply, unless one of the Ratings is BB+/Ba1 or lower, or if
there is no rating, in which case the Applicable Margin will be based on the
rating of BB+/Ba1.
"Arranger": Chase Securities Inc., as advisor, lead arranger and book
manager.
"Assenting Bank": as defined in subsection 5.7(a).
"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": each Assignment and Acceptance, substantially
in the form of Exhibit I, executed and delivered pursuant to subsection
12.6(c).
"Available Foreign Currencies": Pounds Sterling and euro.
"Banks": as defined in the preamble hereto.
"Board": the Board of Governors of the Federal Reserve System or any
successor.
"Borrowers": the collective reference to the Company and the Subsidiary
Borrowers.
"Borrowing Date": any Business Day on which the Company or any Subsidiary
Borrower requests the Banks to make Loans hereunder.
"Business": as defined in subsection 6.19(b).
"Business Day": (a) when such term is used in respect of any amount
denominated or to be denominated in (i) any Available Foreign Currency, a
London Banking Day which is also a day other than a Saturday or Sunday on
which banks are open for general banking business in (x) the city which is
the principal financial center of the country of issuance of such Available
Foreign Currency (or, in the case of Pounds Sterling, Paris), (y) in the case
of euro only, Frankfurt am Main, Germany (or such other principal financial
center as the Administrative Agent may from time to time nominate for this
purpose) and (z) New York City and (ii) Dollars, a London Banking Day which
is also a day other than a Saturday or Sunday on which banks are open for
general banking business in New York City and (b) when such term is used for
the purpose of determining the date on which the Eurocurrency Rate is
determined under this Agreement for any Loan denominated in euro for any
Interest Period therefor and for purposes of determining the first and last
day of any Interest Period, references in this Agreement to Business Days
shall be deemed to be references to Target Operating Days.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the net
annual assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by Chase to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for FDIC's insuring time
deposits made in Dollars at offices of Chase in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for
a Depositary Institution (as defined in Regulation D of the Board) in respect
of new non-personal time deposits in Dollars having a maturity of 30 days or
more.
"Capital Stock": any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and
all equivalent ownership interests in a Person (other than a corporation) and
any and all warrants, options or rights to purchase any of the foregoing.
"Capitalization Documents": the collective reference to the Governing
Documents of the Company and each of its Subsidiaries, the certificates of
designation and other agreements governing the issuance of, or setting forth
the terms of, any Capital Stock (including, without limitation, the common
stock) issued or to be issued by the Company or any of its Subsidiaries and
the Rights Agreement.
"Change in Control": one or more of the following events:
(a) less than a majority of the members of the Company's board of
directors shall be persons who either (i) were serving as directors on the
Closing Date or (ii) were nominated as directors and approved by the vote of
the majority of the directors who are directors referred to in clause (i)
above or this clause (ii); or
(b) the stockholders of the Company shall approve any plan or proposal
for the liquidation or dissolution of the Company; or
(c) a Person or group of Persons acting in concert (other than the
direct or indirect beneficial owners of the Capital Stock of the Company as
of the Closing Date) shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become
the direct or indirect beneficial owner (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended from time to time) of
securities of the Company representing 40% or more of the combined voting
power of the outstanding voting securities for the election of directors or
shall have the right to elect a majority of the board of directors of the
Company.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which the conditions precedent set forth in
subsection 7.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Commitment": as to any Bank, the obligation of such Bank to make and/or
acquire participating interests in Committed Rate Loans or Swing Line Loans
hereunder in an aggregate Dollar Equivalent Amount at any one time
outstanding not to exceed the amount set forth opposite such Bank's name on
Schedule I, as such amount may be changed from time to time in accordance
with the provisions of this Agreement.
"Commitment Percentage": as to any Bank at any time, the percentage which
such Bank's Commitment then constitutes of the aggregate Commitments (or, at
any time after the Commitments shall have expired or terminated, the
percentage which the amount of such Bank's Exposure at such time constitutes
of the aggregate amount of the Exposure of all the Banks at such time).
"Commitment Period": the period from and including the Closing Date to and
including the Termination Date or such earlier date on which the Commitments
shall terminate as provided herein.
"Committed Exposure": as to any Bank, the sum of (a) the aggregate Dollar
Equivalent Amount of the principal amount of all outstanding Committed Rate
Loans and made by such Bank plus (b) such Bank's Commitment Percentage of
the aggregate Dollar Equivalent Amount of the principal amount of all
outstanding Swing Line Loans.
"Committed Rate Loan": as defined in subsection 2.1; a Committed Rate Loan
bearing interest based upon the ABR shall be a "Committed Rate ABR Loan", and
a Committed Rate Loan bearing interest based upon a Eurocurrency Rate shall
be a "Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not incorporated, which
is under common control with the Company within the meaning of Section 4001
of ERISA or is part of a group which includes the Company and which is
treated as a single employer under Section 414 of the Code.
"Company": as defined in the preamble hereto.
"Company Guarantee": the Guarantee of the Company, substantially in the form
of Exhibit F-1, as amended, supplemented or otherwise modified from time to
time.
"Company Guarantee Ratio": at any time, the ratio (expressed as a percentage)
of (a) the excess of (i) the aggregate Exposure of the Subsidiary Borrowers
at such time plus the Aggregate 1995 Exposure at such time over (ii) the
Guarantee Ceiling Amount at such time (the "Excess Exposure") to (b) the
aggregate Exposure of the Subsidiary Borrowers at such time plus the
Aggregate 1995 Exposure at such time; provided that, if the Excess Exposure
at any time is less than or equal to zero, the Company Guarantee Ratio shall
be zero.
"Competitive Advance Loan": as defined in subsection 3.1.
"Competitive Advance Loan Offer": with respect to any Competitive Advance
Loan Request in any Currency, an offer from a Bank in respect of such
Competitive Advance Loan Request, containing the information in respect of
such Competitive Advance Loan Offer and delivered to the Person, in the
manner and by the time specified for a Competitive Advance Loan Offer in
respect of such Currency in the Administrative Schedule.
"Competitive Advance Loan Request": with respect to any Competitive Advance
Loan in any Currency, a request from the Borrower in respect of such Loan,
containing the information in respect of such Competitive Advance Loan and
delivered to the Person, in the manner and by the time specified for a
Competitive Advance Loan Request in respect of such Currency in the
Administrative Schedule.
"Consolidated Cash Interest Expense": for any period, (a) the amount which
would, in conformity with GAAP, be set forth opposite the caption "interest
expense" or any like caption on a consolidated income statement of the
Company and its Subsidiaries minus (b) the amount of non-cash interest
(including interest paid by the issuance of additional securities) included
in such amount.
"Consolidated Net Income": for any fiscal period, the consolidated net
income (or loss) of the Company and its Subsidiaries after excluding all
unusual, extraordinary and non-recurring gains and after adding all unusual,
extraordinary and non-recurring losses, in all cases of the Company and its
Subsidiaries determined on a consolidated basis during the relevant period in
accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which would be
included under shareholders' equity on a consolidated balance sheet of the
Company and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Consolidated Total Capitalization": at a particular date, the sum of (a)
Consolidated Net Worth plus (b) Consolidated Total Debt as at such date.
"Consolidated Total Debt": all Indebtedness of the Company and its
Subsidiaries (excluding Indebtedness of the Company owing to any of its
Subsidiaries or Indebtedness of any Subsidiary of the Company owing to the
Company or any other Subsidiary of the Company), as determined on a
consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.
"Credit Documents": this Agreement, the Subsidiary Guarantees and the
Company Guarantee.
"Currencies": the collective reference to Dollars and Available Foreign
Currencies.
"Default": any of the events specified in Section 10, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollar Equivalent Amount": with respect to (i) the amount of any Available
Foreign Currency on any date, the equivalent amount in Dollars of such amount
of Available Foreign Currency, as determined by the Administrative Agent
using the Exchange Rate and (ii) any amount in Dollars, such amount.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": as to any Person, a Subsidiary of such Person
organized under the laws of a State of the United States or the District of
Columbia.
"Domestic Subsidiary Borrower": each Subsidiary of the Company listed as a
Domestic Subsidiary Borrower in Schedule III as amended from time to time in
accordance with subsection 12.1(b)(i).
"Environmental Laws": any and all applicable foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of
Law (including, without limitation, common law) regulating, relating to or
imposing liability or standards of conduct concerning protection of human
health or the environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"euro": the single currency of participating member states of the European
Union.
"Eurocurrency Loan": any Loan bearing interest based upon a Eurocurrency
Rate.
"Eurocurrency Rate": in respect of Dollars and each Available Foreign
Currency, the rate determined as the Eurocurrency Rate for Dollars or such
Available Foreign Currency in the manner set forth in the Administrative
Schedule.
"Event of Default": any of the events specified in Section 10, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Exchange Rate": with respect to any Available Foreign Currency on any date,
the rate at which such Available Foreign Currency may be exchanged into
Dollars, as set forth on such date on the relevant Reuters currency page at
or about 11:00 a.m. London time on such date. In the event that such rate
does not appear on any Reuters currency page, the "Exchange Rate" with
respect to such Available Foreign Currency 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 Administrative
Agent's spot rate of exchange in the interbank market where its foreign
currency exchange operations in respect of such Available Foreign Currency
are then being conducted, at or about 10:00 a.m., local time, at such date
for the purchase of Dollars with such Available Foreign Currency, for
delivery two Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the Administrative
Agent may use any reasonable method as it deems applicable to determine such
rate, and such determination shall be conclusive absent manifest error
(without prejudice to the determination of the reasonableness of such
method).
"Existing Credit Agreement": as defined in the recitals hereof.
"Exposure": at any date, (a) as to all the Banks, the aggregate Dollar
Equivalent Amount of the outstanding principal amount of all Loans then
outstanding, (b) as to any Bank, the aggregate Dollar Equivalent Amount of
(i) the outstanding principal amount of all Committed Rate Loans and
Competitive Advance Loans made by such Bank and (ii) such Bank's Commitment
Percentage of the outstanding principal amount of all Swing Line Loans and
(c) as to any Borrower, the aggregate Dollar Equivalent Amount of the
outstanding principal amount of all Loans to such Borrower then outstanding.
"Facility Fee Rate": for any date, a rate per annum determined based upon the
Rating in effect on such date by both S&P and Xxxxx'x set forth under the
relevant column heading below opposite such Rating:
Rating (S&P/Xxxxx'x)
Facility Fee Rate (in basis points)
Greater than or equal to A/A2 8.00
Greater than or equal to A-/A3 10.00
Greater than or equal to BBB+/Baa1 12.50
Greater than or equal to BBB/Baa2 17.50
Greater than or equal to BBB-/Baa3 25.00
Less than or equal to BB+/Ba1 32.50
;provided that, in the event that the Ratings of S&P and Xxxxx'x do not
coincide, the Facility Fee Rate set forth above opposite the higher of such
Ratings will apply, unless one of the Ratings is BB+/Ba1 or lower, in which
case the Facility Fee Rate will be based on the rating of BB+/Ba1.
"Financing Lease": any lease of property, real or personal, the obligations
of the lessee in respect of which are required in accordance with GAAP to be
capitalized on a balance sheet of the lessee.
"Foreign Currency Exposure": at any date, the aggregate Dollar Equivalent
Amount of the outstanding principal amount of all Loans then outstanding
which are denominated in a currency other than Dollars.
"Foreign Subsidiary Borrower": each Subsidiary of the Company listed as a
Foreign Subsidiary Borrower in Schedule II as amended from time to time in
accordance with subsection 12.1(b)(i); provided that with respect to any
Subsidiary for which a Foreign Subsidiary Opinion has not previously been
delivered, if the aggregate Exposure of such Subsidiary owing to all Banks
exceeds $20,000,000 for a period of 30 consecutive days, then, unless a
Foreign Subsidiary Opinion is delivered within 30 days after the end of such
period, such Subsidiary shall cease to be a Foreign Subsidiary Borrower 30
days after the end of such period with respect to all Exposure of such
Subsidiary owing to the Banks in excess of $20,000,000.
"Foreign Subsidiary Opinion": with respect to any Foreign Subsidiary
Borrower, a legal opinion of counsel to such Foreign Subsidiary Borrower
addressed to the Administrative Agent and the Banks concluding that such
Foreign Subsidiary Borrower and the Credit Documents to which it is a party
substantially comply with the matters listed on Exhibit G-3 hereto, with such
deviations therefrom as the Administrative Agent shall consent (such consent
not to be unreasonably withheld).
"Funding Office": for each Type of Committed Rate Loan and each Currency,
the Funding Office set forth in respect thereof in the Administrative
Schedule.
"Funding Time": for each Type of Committed Rate Loan and each Currency, the
Funding Time set forth in respect thereof in the Administrative Schedule.
"GAAP": generally accepted accounting principles in the United States of
America in effect from time to time.
"Gates": Gates/Arrow Distributing, Inc., a Delaware corporation.
"Governing Documents": as to any Person, the certificate or articles of
incorporation and by-laws or other organizational or governing documents of
such Person.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Ceiling Amount": at any time, the aggregate amount of obligations
that, pursuant to the restrictions contained in the Note Purchase Agreement,
may be guaranteed by the Company under the Company Guarantee on a basis pari
passu with the 1992 Private Placement Notes.
"Guarantee Obligation": as to any Person (the "guaranteeing person"), any
obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the
creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in
effect guaranteeing any Indebtedness, leases, dividends or other obligations
(the "primary obligations") of any other third Person (the "primary obligor")
in any manner, whether directly or indirectly, including, without limitation,
any obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the
purchase or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment
of such primary obligation or (iv) otherwise to assure or hold harmless the
owner of any such primary obligation against loss in respect thereof;
provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course
of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability
in respect thereof as determined by the Company in good faith.
"Guarantor": the Company or any Subsidiary in its capacity as a party to the
Company Guarantee or a Subsidiary Guarantee, as the case may be.
"Hedging Agreements": (a) Interest Rate Agreements and (b) any swap,
futures, forward or option agreements or other agreements or arrangements
designed to limit or eliminate the risk and/or exposure of a Person to
fluctuations in currency exchange rates.
"Hedging Banks": any Bank or any of its subsidiaries or affiliates which
from time to time enter into Hedging Agreements with the Company or any of
its Subsidiaries.
"Indebtedness": of any Person at any date, without duplication, (a) the
principal amount of all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) the principal amount of any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) the portion of all obligations of such Person under
Financing Leases which must be capitalized in accordance with GAAP, (d) the
principal or stated amount of all obligations of such Person in respect of
letters of credit, banker's acceptances or similar obligations issued or
created for the account of such Person, (e) all liabilities arising under
Hedging Agreements of such Person, (f) the principal or stated amount of all
Guarantee Obligations of such Person (other than guarantees by the Company or
any Subsidiary in respect of current trade liabilities of the Company or any
Subsidiary incurred in the ordinary course of business and payable in
accordance with customary terms), and (g) the principal amount of all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof.
"Initial Subsidiary Guarantee": the Subsidiary Guarantee executed on the
Closing Date by Gates, substantially in the form of Exhibit F-2, as the same
may be amended, supplemented or otherwise modified from time to time.
"Insolvency": with respect to any Multiemployer Plan, the condition that
such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of each March,
June, September and December, (b) as to any Committed Rate Eurocurrency Loan
having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Committed Rate Eurocurrency Loan having an
Interest Period longer than three months, each day which is three months
after the first day of such Interest Period and the last day of such Interest
Period, (d) as to any Swing Line Loan, the last Business Day of each calendar
month during which such Swing Line Loan is outstanding, and (e) as to any
Competitive Advance Loan, the date or dates set forth in the applicable
Competitive Advance Loan Request or otherwise agreed upon by the relevant
Borrower and Bank at the time the terms of such Competitive Advance Loan are
determined as provided in subsection 3.2.
"Interest Period": with respect to any Committed Rate Eurocurrency Loan:
(i) initially, the period commencing on the borrowing or conversion
date, as the case may be, with respect to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the relevant
Borrower in its Notice of Borrowing or Notice of Conversion, as the case may
be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by the relevant
Borrower by a Notice of Continuation with respect thereto; provided that, all
of the foregoing provisions relating to Interest Periods are subject to the
following:
(1) if any Interest Period would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection agreement, interest
rate future, interest rate option, interest rate swap, interest rate cap or
other interest rate hedge or arrangement under which the Company is a party
or a beneficiary.
"Joinder Agreement": each Joinder Agreement, substantially in the form of
Exhibit A, from time to time executed and delivered hereunder pursuant to
subsection 12.1(b).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"Loan": any Committed Rate Loan, Competitive Advance Loan or Swing Line
Loan.
"Loan Parties": the Company and each Subsidiary of the Company which is a
party to a Credit Document.
"London Banking Day": any day on which banks in London are open for general
banking business, including dealings in foreign currency and exchange.
"Material Adverse Effect": a material adverse effect on (a) the business,
operations, property, condition (financial or otherwise) or prospects of the
Company and
its Subsidiaries taken as a whole, (b) the ability of the Company to perform
its obligations under this Agreement or other Credit Documents or (c) the
validity or enforceability of this Agreement or any of the other Credit
Documents or the rights or remedies of the Administrative Agent, or the Banks
hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or
under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Xxxxx'x": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"1995 Credit Agreement": the Second Amended and Restated Credit Agreement,
dated as of August 16, 1995, as amended, among the Company, the other
borrowers named therein, Chase, as administrative agent, and others.
"1992 Private Placement Notes": the $75,000,000 Senior Secured Notes issued
by the Company pursuant to the Note Purchase Agreement, as any of the same
may be
amended, supplemented, endorsed or otherwise modified from time to time;
provided the aggregate principal amount thereof is not increased.
"Non-Excluded Taxes": as defined in subsection 5.6.
"Note Purchase Agreement": the collective reference to the several Senior
Note Purchase Agreements, each dated as of December 29, 1992, among the
Company and the respective financial institutions party thereto as
purchasers, as the same may be amended, supplemented or otherwise modified
from time to time.
"Notice of Borrowing": with respect to a Committed Rate Loan of any Type in
any Currency, a notice from the Borrower in respect of such Loan, containing
the information in respect of such Loan and delivered to the Person, in the
manner and by the time specified for a Notice of Borrowing in respect of such
Currency and such Type of Loan in the Administrative Schedule.
"Notice of Continuation": with respect to a Committed Rate Eurocurrency Loan
in any Currency, a notice from the Borrower in respect of such Loan,
containing the information in respect of such Loan and delivered to the
Person, in the manner and by the time specified for a Notice of Continuation
in respect of such Currency in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate Loan in Dollars
which a Borrower wishes to convert from a Eurocurrency Loan to an ABR Loan,
or from an ABR Loan to a Eurocurrency Loan, as the case may be, a notice from
such Borrower setting forth the amount of such Loan to be converted, the date
of such conversion and, in the case of conversions of ABR Loans to
Eurocurrency Loans, the length of the initial Interest Period applicable
thereto. Each Notice of Conversion shall be delivered to the Administrative
Agent at its address set forth in subsection 12.2 and shall be delivered
before 12:00 Noon, New York City time, on the Business Day of the requested
conversion in the case of conversions to ABR Loans, and before 12:00 Noon,
New York City time, three Business Days before the requested conversion in
the case of conversions to Eurocurrency Loans.
"Notice of Guarantee Ceiling Amount": a certificate of the Company
substantially in the form of Exhibit J delivered to the Administrative Agent
and calculating the Guarantee Ceiling Amount.
"Notice of Prepayment": with respect to prepayment of any Committed Rate
Loan of any Type in any Currency, a notice from the Borrower in respect of
such Loan, containing the information in respect of such prepayment and
delivered to the Person, in the manner and by the time specified for a Notice
of Prepayment in respect of such Currency and such Type of Loan in the
Administrative Schedule.
"Notice of Swing Line Borrowing": with respect to a Swing Line Loan of any
Type in any Currency, a notice from the Borrower in respect of such Loan,
containing the information in respect of such Swing Line Loan and delivered
to the Person, in the manner and by the time agreed by the Company and the
applicable Swing Line Bank in respect of such Currency and such Type of Loan.
"Notice of Swing Line Outstandings": with respect to each Swing Line Bank, a
notice from such Swing Line Bank containing the information, delivered to the
Person, in the manner and by the time, specified for a Notice of Swing Line
Outstandings in the Administrative Schedule.
"Notice of Swing Line Refunding": with respect to each Swing Line Bank, a
notice from such Swing Line Bank containing the information, delivered to the
Person, in the manner and by the time, specified for a Notice of Swing Line
Refunding in the Administrative Schedule.
"Objecting Bank": as defined in subsection 12.1(d).
"Participant": as defined in subsection 12.6(b).
"Payment Office": for each Type of Committed Rate Loan and each Currency,
the Payment Office set forth in respect thereof in the Administrative
Schedule.
"Payment Time": for each Type of Committed Rate Loan and each Currency, the
Payment Time set forth in respect thereof in the Administrative Schedule.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is covered by
ERISA and in respect of which the Company or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pounds", "Pounds Sterling" and "Sterling": the lawful currency of the
United
Kingdom.
"Properties": as defined in subsection 6.19(a).
"Ratings": the actual or implied senior unsecured non-credit enhanced debt
ratings of the Company in effect from time to time by Xxxxx'x or S&P, as the
case may be, the bank debt rating of the Company in effect from time to time
by Xxxxx'x or the corporate credit rating of the Company in effect from time
to time by S&P.
"Register": as defined in subsection 12.6(d).
"Regulation U": Regulation U of the Board as in effect from time to time.
"Reorganization": with respect to any Multiemployer Plan, the condition that
such plan is in reorganization within the meaning of Section 4241 of ERISA.
"Replacement Bank": a bank or financial institution that assumes certain
Commitments and obligations and purchases certain Loans and rights pursuant
to subsection 5.7(b) or 12.1(d).
"Reportable Event": any of the events set forth in Section 4043(c) of ERISA,
other than those events as to which the thirty day notice period is waived
under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. ' 2615.
"Required Banks": at any time, Banks the Commitment Percentages of which
aggregate more than 50%.
"Requirement of Law": as to any Person, the Governing Documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer": as to any Person, the chief executive officer, the
chairman of the board, the president, the chief financial officer, the chief
accounting officer, any executive or senior vice president or the treasurer
of such Person.
"Rights Agreement": the Rights Agreement, dated as of March 2, 1988, between
the Company and Chase, as successor by merger to Manufacturers Hanover Trust
Company, as rights agent, as amended, supplemented or otherwise modified from
time to time.
"S&P": Standard & Poor's Ratings Group.
"Schedule Amendment": each Schedule Amendment, substantially in the form of
Exhibit B, executed and delivered pursuant to subsection 12.1.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Subordinated Debentures": the Company's 5-3/4% Convertible Subordinated
Debentures due 2002.
"Subordinated Indebtedness": Indebtedness outstanding under the Subordinated
Debentures.
"Subsidiary": as to any Person, a corporation, partnership or other entity
of which shares of stock or other ownership interests having ordinary voting
power (other than stock or such other ownership interests having such power
only by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Company.
"Subsidiary Borrower": the collective reference to the Foreign Subsidiary
Borrowers and the Domestic Subsidiary Borrowers.
"Subsidiary Guarantee": each of (a) the Initial Subsidiary Guarantee and
(b) each other Subsidiary Guarantee, substantially in the form of the Initial
Subsidiary Guarantee with such changes as shall be approved by the
Administrative Agent, to be executed and delivered from time to time by any
other Domestic Subsidiary that accounts for more than 5% of Total Assets at
any date, in each case, as the same may be amended, supplemented or otherwise
modified from time to time.
"Swing Line Bank": in respect of any Borrower and any Currency, each Bank
listed as a Swing Line Bank in respect of such Borrower and Currency in
Schedule III.
"Swing Line Currency": in respect of any Borrower, the Currency set forth
for
such Borrower in Schedule III.
"Swing Line Limit": in respect of any Borrower, the amount listed as the
Swing Line Limit in respect of such Borrower in Schedule III, but not in any
case for all Borrowers to exceed a Dollar Equivalent Amount equal to
$25,000,000.
"Swing Line Loan": as defined in subsection 4.1.
"Swing Line Rate": in respect of each Swing Line Currency for each Swing
Line Bank, the interest rate agreed from time to time between the Company and
such Swing Line Bank.
"Target Operating Day": any day that is not (a) a Saturday or Sunday, (b)
Christmas Day or New Year's Day or (c) any other day on which the Trans-
European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the Administrative
Agent).
"Termination Date": March 23, 2001, as such date may be extended pursuant to
subsection 5.12.
"Total Assets": at a particular date, the assets of the Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Tranche": the collective reference to Committed Rate Eurocurrency Loans in
any Currency the then current Interest Periods with respect to all of which
begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 12.6(f).
"Type": in respect of any Loan, its character as a Committed Rate Loan,
Competitive Advance Loan or Swing Line Loan, as the case may be.
"UCC": the Uniform Commercial Code as from time to time in effect in the
relevant jurisdiction.
"Undrawn Commitment": as to any Bank at any time, the amount of such Bank's
Commitment minus the amount of such Bank's Committed Exposure at such time
but not less than zero.
1.2 Other Definitional Provisions1.2 Other Definitional Provisions tc \l 2
"1.2 Other Definitional Provisions" . (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms relating to the Company and its
Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) The phrases "to the knowledge of the Company" and "of which any
Subsidiary is aware" and phrases of similar import when used in this
Agreement shall mean to the actual knowledge of a Responsible Officer of the
Company or any such Subsidiary, as the case may be.
1.3 Accounting Determinations.3 Accounting Determinations tc \l 21 ".3
Accounting Determinations" . Unless otherwise specified herein, all
accounting determinations for purposes of calculating or determining
compliance with the terms found in subsection 1.1 or the standards and
covenants found in subsection 9.1 and otherwise to be made under this
Agreement shall be made in accordance with GAAP applied on a basis consistent
in all material respects with that used in preparing the financial statements
referred to in subsection 6.1. If GAAP shall change from the basis used in
preparing such financial statements, the certificates required to be
delivered pursuant to subsection 8.2 demonstrating compliance with the
covenants contained herein shall set forth calculations setting forth the
adjustments necessary to demonstrate how the Company is in compliance with
the financial covenants based upon GAAP as in effect on the Closing Date.
SECTION 2. THE COMMITTED RATE LOANSSECTION 2. THE COMMITTED RATE LOANS tc
\l 1 "SECTION 2. THE COMMITTED RATE LOANS"
2.1 Committed Rate Loans2.1 Committed Rate Loans tc \l 2 "2.1 Committed
Rate Loans" . (a) Subject to the terms and conditions hereof, each Bank
severally agrees to make loans on a revolving credit basis ("Committed Rate
Loans") to any Borrower from time to time during the Commitment Period;
provided, that (i) no Committed Rate Loan shall be made if, after giving
effect to the making of such Loan and the simultaneous application of the
proceeds thereof, (A) the aggregate amount of the Exposure of all the Banks
would exceed $550,000,000 (the aggregate amount of the Commitments) or (B)
the aggregate amount of the Foreign Currency Exposure would exceed
$100,000,000, and (ii) no Committed Rate Loan shall be made to any Subsidiary
Borrower if, after giving effect to the making of such Loan and the
simultaneous application of the proceeds thereof, the Company Guarantee Ratio
would exceed 25%. During the Commitment Period, the Borrowers may use the
Commitments by borrowing, prepaying the Committed Rate Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions
hereof.
(b) The Committed Rate Loans may be made in Dollars or any Available
Foreign Currency and may from time to time be (i) Committed Rate Eurocurrency
Loans, (ii) in the case of Committed Rate Loans in Dollars only, Committed
Rate ABR Loans or (iii) a combination thereof, as determined by the relevant
Borrower and set forth in the Notice of Borrowing or Notice of Conversion
with respect thereto; provided, that no Committed Rate Eurocurrency Loan
shall be made after the day that is one month prior to the Termination Date.
2.2 Procedure for Committed Rate Loan Borrowing2.2 Procedure for Committed
Rate Loan Borrowing tc \l 2 "2.2 Procedure for Committed Rate Loan
Borrowing". Any Borrower may request the Banks to make Committed Rate Loans
on any Business Day during the Commitment Period by delivering a Notice of
Borrowing. Each borrowing of Committed Rate Loans (other than pursuant to a
Swing Line refunding pursuant to subsection 4.4) shall be in an amount equal
to (a) in the case of ABR Loans, $1,000,000 or a whole multiple of $500,000
in excess thereof (or, if the then aggregate undrawn amount of the
Commitments is less than $1,000,000, such lesser amount) and (b) in the case
of Eurocurrency Loans, (i) if in Dollars, $2,000,000 or increments of
$500,000 thereafter, and (ii) if in any Available Foreign Currency, an amount
in such Available Foreign Currency of which the Dollar Equivalent Amount is
at least $2,000,000. Upon receipt of any such Notice of Borrowing from a
Borrower, the Administrative Agent shall promptly notify each Bank of receipt
of such Notice of Borrowing and of such Bank's Commitment Percentage of the
Committed Rate Loans to be made pursuant thereto. Subject to the terms and
conditions hereof, each Bank will make its Commitment Percentage of each such
borrowing available to the Administrative Agent for the account of such
Borrower at the Funding Office, and at or prior to the Funding Time, for the
Currency of such Loan in funds immediately available to the Administrative
Agent in the applicable Currency. The amounts made available by each Bank
will then be made available to such Borrower at the Funding Office, in like
funds as received by the Administrative Agent.
2.3 Repayment of Committed Rate Loans; Evidence of Debt2.3 Repayment of
Committed Rate Loans; Evidence of Debt tc \l 2 "2.3 Repayment of Committed
Rate Loans; Evidence of Debt".
(a) Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Bank on the Termination Date
with respect to such Bank (or such earlier date on which the Loans become due
and payable pursuant to Section 10), the then unpaid principal amount of each
Committed Rate Loan made by such Bank to such Borrower. Each Borrower hereby
further agrees to pay interest on the unpaid principal amount of the
Committed Rate Loans made to such Borrower from time to time outstanding from
the date hereof until payment in full thereof at the rates per annum, and on
the dates, set forth in subsection 2.8.
(b) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Bank
resulting from each Committed Rate Loan of such Bank from time to time,
including the amounts of principal and interest payable and paid to such Bank
from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
subsection 12.6(d), and a subaccount therein for each Bank, in which shall be
recorded (i) the amount of each Committed Rate Loan made hereunder and each
Interest Period (if any) applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable from each Borrower
to each Bank under Committed Rate Loans and (iii) the amount of any sum
received by the Administrative Agent from each Borrower in respect of
Committed Rate Loans, and the amount of each Bank's share thereof.
(d) The entries made in the Register and the accounts of each Bank
maintained pursuant to subsection 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; provided, however, that the
failure of any Bank or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of each Borrower to repay (with applicable interest) the Committed
Rate Loans made to such Borrower by such Bank in accordance with the terms of
this Agreement.
2.4 Termination or Reduction of Commitments2.4 Termination or Reduction of
Commitments tc \l 2 "2.4 Termination or Reduction of Commitments" . The
Company shall have the right, upon not less than five Business Days' notice
to the Administrative Agent, to terminate the Commitments or, from time to
time, to reduce the amount of the Commitments. Any such reduction shall be
in an amount equal to $5,000,000 or a whole multiple thereof and shall reduce
permanently the Commitments then in effect; provided that the Commitments may
not be optionally reduced at any time to an amount which is less than the
amount of the Exposure of all the Banks at such time; and provided further
that the Commitments may not be reduced to an amount which is less than
$50,000,000 unless they are terminated in full.
2.5 Optional Prepayments2.5 Optional Prepayments tc \l 2 "2.5 Optional
Prepayments". By giving a Notice of Prepayment, any Borrower may, at any
time and from time to time, prepay the Committed Rate Loans made to such
Borrower, in whole or in part, without premium or penalty (except as provided
in subsection 5.8). Upon receipt of any such notice the Administrative Agent
shall promptly notify each Bank thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the date
specified therein, together with any amounts payable pursuant to subsection
5.8. Partial prepayments shall be in an aggregate principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof or an aggregate
principal Dollar Equivalent Amount of at least $1,000,000 for Loans
denominated in a Foreign Currency.
2.6 Conversion and Continuation Options2.6 Conversion and Continuation
Options tc \l 2 "2.6 Conversion and Continuation Options" . (a) By giving
a Notice of Conversion, any Borrower may elect from time to time (i) to
convert such Borrower's Eurocurrency Loans in Dollars to ABR Loans or (ii) to
convert such Borrower's ABR Loans to Eurocurrency Loans in Dollars. Upon
receipt of any Notice of Conversion the Administrative Agent shall promptly
notify each Bank thereof. All or any part of Eurocurrency Loans outstanding
in Dollars or ABR Loans may be converted as provided herein, provided that
(i) no ABR Loan may be converted into a Eurocurrency Loan when any Event of
Default has occurred and is continuing and the Administrative Agent has or
the Required Banks have determined that such a conversion is not appropriate
and (ii) no ABR Loan may be converted into a Eurocurrency Loan after the date
that is one month prior to the Termination Date.
(b) By giving a Notice of Continuation, any Borrower may continue any of
such Borrower's Eurocurrency Loans as Eurocurrency Loans in the same Currency
for additional Interest Periods.
(c) Any Borrower may convert Committed Rate Loans outstanding in Dollars
or one Available Foreign Currency to Committed Rate Loans in Dollars or a
different Currency by repaying such Loans in the first Currency and borrowing
Loans of such different Currency in accordance with the applicable provisions
of this Agreement.
(d) If any Borrower shall fail to timely give a Notice of Continuation
or a Notice of Conversion in respect of any of such Borrower's Eurocurrency
Loans with respect to which an Interest Period is expiring, such Borrower
shall be deemed to have given a Notice of Continuation for an Interest Period
of one month.
2.7 Minimum Amounts of Tranches2.7 Minimum Amounts of Tranches tc \l 2
"2.7 Minimum Amounts of Tranches" . All borrowings, conversions and
continuations of Committed Rate Loans and all selections of Interest Periods
shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of the Committed
Rate Loans comprising (i) each Tranche in Dollars shall be not less than
$2,000,000 and (ii) each Tranche in any Available Foreign Currency shall be
not less than the Dollar Equivalent Amount in such Currency of $2,000,000.
2.8 Interest Rates and Payment Dates for Committed Rate Loans2.8 Interest
Rates and Payment Dates for Committed Rate Loans tc \l 2 "2.8 Interest
Rates and Payment Dates for Committed Rate Loans" . (a) Each Committed Rate
Eurocurrency Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurocurrency
Rate for such Interest Period plus the Applicable Margin.
(b) Each Committed Rate ABR Loan shall bear interest at a rate per annum
equal to the ABR.
(c) If all or a portion of (i) the principal amount of any Committed
Rate Loan or (ii) any interest payable thereon shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum which is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this subsection plus 2% or (y) in the
case of overdue interest, the rate described in paragraph (b) of this
subsection plus 2%, in each case from the date of such non-payment until such
amount is paid in full (as well after as before judgment).
(d) Interest on Committed Rate Loans shall be payable in arrears on each
Interest Payment Date; provided, that interest accruing pursuant to paragraph
(c) of this subsection shall be payable from time to time on demand.
2.9 Inability to Determine Interest Rate2.9 Inability to Determine Interest
Rate tc \l 2 "2.9 Inability to Determine Interest Rate" . If on or prior
to the date on which the Eurocurrency Rate is determined for any Interest
Period in respect of any Eurocurrency Loan in any Currency:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that, by reason of circumstances
affecting the relevant market generally, adequate and reasonable means do not
exist for ascertaining the Eurocurrency Rate for such affected Currency or
such affected Interest Period, or
(b) the Administrative Agent shall have received notice from Banks
having Commitments comprising at least 25% of the aggregate amount of the
Commitments that the Eurocurrency Rate determined or to be determined for
such affected Interest Period will not adequately and fairly reflect the cost
to such Banks (as conclusively certified by such Banks) of making or
maintaining their affected Committed Rate Loans during such affected Interest
Period, the Administrative Agent shall give telecopy or telephonic notice
thereof to the Company and the Banks as soon as practicable thereafter. If
such notice is given (x) any Eurocurrency Loans requested to be made in such
affected Currency on the first day of such affected Interest Period shall be
made as ABR Loans in Dollars in the Dollar Equivalent Amount, (y) any
Committed Rate Loans that were to have been converted on the first day of
such affected Interest Period from ABR Loans to Eurocurrency Loans shall be
continued as ABR Loans and (z) any Eurocurrency Loans in such affected
Currency that were to have been continued as such shall be converted, on the
first day of such Interest Period, to ABR Loans in Dollars in the Dollar
Equivalent Amount. Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans in such affected Currency
shall be made, converted to or continued as such.
SECTION 3. THE COMPETITIVE ADVANCE LOANSSECTION 3. THE COMPETITIVE ADVANCE
LOANS tc \l 1 "SECTION 3. THE COMPETITIVE ADVANCE LOANS"
3.1 Competitive Advance Loans3.1 Competitive Advance Loans tc \l 2 "3.1
Competitive Advance Loans" . (a) Subject to the terms and conditions
hereof, any Borrower may, from time to time during the Commitment Period,
request the Banks to offer bids, and any Bank may, in its sole discretion,
offer such bids, to make competitive advance loans ("Competitive Advance
Loans") to such Borrower on the terms and conditions set forth in such bids.
Each Competitive Advance Loan shall bear interest at the rates, be payable on
the dates, and shall mature on the date, agreed between such Borrower and
Bank at the time such Competitive Advance Loan is made; provided, that (i)
each Competitive Advance Loan shall mature not earlier than 1 day and not
later than 180 days, after the date such Competitive Advance Loan is made and
(ii) no Competitive Advance Loan shall mature after the Termination Date.
During the Commitment Period, the Borrowers may accept bids from Banks from
time to time for Competitive Advance Loans, and borrow and repay Competitive
Advance Loans, all in accordance with the terms and conditions hereof;
provided, that (i) no Competitive Advance Loan shall be made if, after giving
effect to the making of such Loan and the simultaneous application of the
proceeds thereof, (A) the aggregate amount of the Exposure of all the Banks
would exceed the aggregate amount of the Commitments or (B) the aggregate
amount of the Foreign Currency Exposure would exceed $100,000,000, and (ii)
no Competitive Advance Loan shall be made to any Subsidiary Borrower if,
after giving effect to the making of such Loan and the simultaneous
application of the proceeds thereof, the Company Guarantee Ratio would exceed
25%. Subject to the foregoing, any Bank may, in its sole discretion, make
Competitive Advance Loans in an aggregate outstanding amount exceeding the
amount of such Bank's Commitment.
(b) The Competitive Advance Loans may be made in Dollars or any
Available Foreign Currency, as agreed between the Borrower and Bank in
respect thereof at the time such Competitive Advance Loan is made.
3.2 Procedure for Competitive Advance Loan Borrowing3.2 Procedure for
Competitive Advance Loan Borrowing tc \l 2 "3.2 Procedure for Competitive
Advance Loan Borrowing".
(a) Any Borrower may request Competitive Advance Loans by delivering a
Competitive Advance Loan Request. The Administrative Agent shall notify each
Bank promptly by facsimile transmission of the contents of each Competitive
Advance Loan Request received by the Administrative Agent. Each Bank may
elect, in its sole discretion, to offer irrevocably to make one or more
Competitive Advance Loans to the Borrower by delivering a Competitive Advance
Loan Offer to the Administrative Agent.
(b) Before the acceptance time set forth in the applicable Competitive
Advance Loan Request, the relevant Borrower, in its absolute discretion,
shall:
(i) cancel such Competitive Advance Loan Request by giving the
Administrative Agent telephone notice to that effect, or
(ii) by giving telephone notice to the Administrative Agent
immediately confirmed in writing or by facsimile transmission (1) subject to
the provisions of subsection 3.2(c) accept one or more of the offers made by
any Bank or Banks pursuant to subsection 3.2(a) of the amount of Competitive
Advance Loans for each relevant maturity date and (2) reject any remaining
offers made by Banks pursuant to subsection 3.2(a).
(c) The relevant Borrower's acceptance of Competitive Advance Loans in
response to any Competitive Advance Loan Request shall be subject to the
following limitations:
(i) The amount of Competitive Advance Loans accepted for each
maturity date specified by any Bank in its Competitive Advance Loan Offer
shall not exceed the maximum amount for such maturity date specified in such
Competitive
Advance Loan Offer;
(ii) the aggregate amount of Competitive Advance Loans accepted for
all maturity dates specified by any Bank in its Competitive Advance Loan
Offer shall not exceed the aggregate maximum amount specified in such
Competitive Advance Loan
Offer for all such maturity dates;
(iii) such Borrower may not accept offers for Competitive Advance
Loans for any maturity date in an aggregate principal amount in excess of the
maximum principal amount requested in the related Competitive Advance Loan
Request; and
(iv) if such Borrower accepts any of such offers, it must accept
offers based solely upon pricing for such relevant maturity date and upon no
other criteria whatsoever and if two or more Banks submit offers for any
maturity date at identical pricing and such Borrower accepts any of such
offers but does not wish to (or by reason of the limitations set forth in
this subsection 3.2(c)(iii) cannot) borrow the total amount offered by such
Banks with such identical pricing, the Administrative Agent shall allocate
offers from all of such Banks in amounts among them pro rata according to the
amounts offered by such Banks (or as nearly pro rata as shall be
practicable).
(d) If the relevant Borrower notifies the Administrative Agent that a
Competitive Advance Loan Request is canceled, the Administrative Agent shall
give prompt telephone notice thereof to the Banks.
(e) If the relevant Borrower accepts one or more of the offers made by
any Bank or Banks, the Administrative Agent promptly shall notify each Bank
which has made such a Competitive Advance Loan Offer of (i) the aggregate
amount of such Competitive Advance Loans to be made for each maturity date
and (ii) the acceptance or rejection of any offers to make such Competitive
Advance Loans made by such Bank. Before the Funding Time for Committed Rate
Loans of the applicable Currency, each Bank whose Competitive Advance Loan
Offer has been accepted shall make available to the Administrative Agent for
the account of the relevant Borrower at the Funding Office for Committed Rate
Loans of the applicable Currency the amount of Competitive Advance Loans in
the applicable Currency to be made by such Bank, in immediately available
funds.
3.3 Repayment of Competitive Advance Loans; Evidence of Debt3.3 Repayment
of Competitive Advance Loans; Evidence of Debt tc \l 2 "3.3 Repayment of
Competitive Advance Loans; Evidence of Debt" . (a) Each Borrower that
borrows any Competitive Advance Loan hereby unconditionally promises to pay
to the Bank that made such Competitive Advance Loan on the maturity date, as
agreed by such Borrower and Bank (or such earlier date on which all the Loans
become due and payable pursuant to Section 10), the then unpaid principal
amount of such Competitive Advance Loan. Each Borrower hereby further agrees
to pay interest on the unpaid principal amount of the Competitive Advance
Loans made by any Bank to such Borrower from time to time outstanding from
the date thereof until payment in full thereof at the rate per annum, and on
the dates, agreed by such Borrower and Bank at the time such Competitive
Advance Loan is made. All payments in respect of Competitive Advance Loans
shall be made by such Borrower to the Administrative Agent for the account of
the Bank that makes such Competitive Advance Loan to the Payment Office and
by the Payment Time specified for Committed Rate Loans in the applicable
Currency.
(b) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Bank
resulting from each Competitive Advance Loan of such Bank from time to time,
including the amounts of principal and interest payable and paid to such Bank
from time to time in respect of Competitive Advance Loans. The entries made
in the accounts of each Bank maintained pursuant to this subsection 3.3(b)
shall, to the extent permitted by applicable law, be prima facie evidence of
the existence and amounts of the obligations of each Borrower therein
recorded, absent manifest error; provided, however, that the failure of any
Bank to maintain any such account, or any error therein, shall not in any
manner affect the obligation of each Borrower to repay (with applicable
interest) the Competitive Advance Loans made to such Borrower by such Bank in
accordance with the terms of this Agreement.
3.4 Prepayments3.4 Prepayments tc \l 2 "3.4 Prepayments" . Unless
otherwise agreed by the Bank making a Competitive Advance Loan, upon giving a
Notice of Prepayment at the address and time specified for Committed Rate
Loans in the applicable Currency such Competitive Advance Loan may be
optionally prepaid prior to the scheduled maturity date thereof.
SECTION 4. THE SWING LINE LOANSSECTION 4. THE SWING LINE LOANS tc \l 1
"SECTION 4. THE SWING LINE LOANS"
4.1 Swing Line Loans4.1 Swing Line Loans tc \l 2 "4.1 Swing Line Loans" .
Subject to the terms and conditions hereof, each Borrower may borrow from
such Borrower's Swing Line Bank swing line loans ("Swing Line Loans") from
time to time during the Commitment Period in a Swing Line Currency of such
Borrower; provided, that (i) no Swing Line Loan shall be made if, after
giving effect to the making of such Loan and the simultaneous application of
the proceeds thereof, (A) the aggregate amount of the Exposure of all the
Banks would exceed the aggregate amount of the Commitments, (B) the aggregate
amount of the Foreign Currency Exposure would exceed $100,000,000, or (C) the
aggregate Dollar Equivalent Amount of all outstanding Swing Line Loans of
such Borrower would exceed the Swing Line Limit for such Borrower or the
Dollar Equivalent Amount of all outstanding Swing Line Loans would exceed the
Swing Line Limit, and (ii) no Swing Line Loan shall be made to any Subsidiary
Borrower if, after giving effect to the making of such Loan and the
simultaneous application of the proceeds thereof, the Company Guarantee Ratio
would exceed 25%. During the Commitment Period, the Borrowers may borrow and
prepay the Swing Line Loans, in whole or in part, all in accordance with the
terms and conditions hereof.
4.2 Procedure for Swing Line Borrowing4.2 Procedure for Swing Line
Borrowing tc \l 2 "4.2 Procedure for Swing Line Borrowing".
(a) Any Borrower may borrow Swing Line Loans during the Commitment
Period on any Business Day by giving a Notice of Swing Line Borrowing in
respect of such Swing Line Loan. Subject to the terms and conditions hereof,
on the Borrowing Date of each Swing Line Loan, the relevant Swing Line Bank
shall make the proceeds thereof available to the relevant Borrower in
immediately available funds in the applicable Currency in the manner from
time to time agreed by such Borrower and such Swing Line Bank.
(b) Upon request of the Administrative Agent and on the last Business
Day of each month on which a Swing Line Bank has any outstanding Swing Line
Loans, such Bank shall deliver to the Administrative Agent a Notice of Swing
Line Outstandings. The Administrative Agent will, at the request of any
Swing Line Bank, advise such Swing Line Bank of the Exchange Rate used by the
Administrative Agent in calculating the Dollar Equivalent Amount of Swing
Line Loans of such Swing Line Bank on any date.
4.3 Repayment of Swing Line Loans; Evidence of Debt4.3 Repayment of Swing
Line Loans; Evidence of Debt tc \l 2 "4.3 Repayment of Swing Line Loans;
Evidence of Debt".
(a) Each Borrower hereby unconditionally promises to pay to its Swing
Line Bank on the Termination Date (or such earlier date on which such Swing
Line Loans become due and payable pursuant to subsection 4.4 or on which all
the Loans become due and payable pursuant to Section 10), the then unpaid
principal amount of all Swing Line Loans made to such Borrower. Each
Borrower hereby further agrees to pay interest on the unpaid principal amount
of all Swing Line Loans made to such Borrower from time to time outstanding
from the date thereof until payment in full thereof at the Swing Line Rate
for the Currency of such Swing Line Loan, payable on the last Business Day of
each calendar month on which such Swing Line Loans are outstanding. All
payments in respect of Swing Line Loans shall be made by such Borrower to its
Swing Line Bank at the address set forth in Schedule III for such Swing Line
Bank and Swing Line Loans in such Currency.
(b) Each Swing Line Bank shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each Borrower to
such Swing Line Bank resulting from each Swing Line Loan of such Bank from
time to time, including the amounts of principal and interest payable and
paid to such Swing Line Bank from time to time under this Agreement. The
entries made in the accounts of each Swing Line Bank maintained pursuant to
this subsection 4.3(b) shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations of each
Borrower therein recorded; provided, however, that the failure of any Swing
Line Bank to maintain any such account, or any error therein, shall not in
any manner affect the obligation of each Borrower to repay (with applicable
interest) the Swing Line Loans made to such Borrower by such Swing Line Bank
in accordance with the terms of this Agreement.
4.4 Allocating Swing Line Loans; Swing Line Loan Participations.4
Allocating Swing Line Loans; Swing Line Loan Participations tc \l 24 ".4
Allocating Swing Line Loans; Swing Line Loan Participations".
(a) If any Event of Default shall occur and be continuing, any Swing
Line Bank may, in its sole and absolute discretion, direct that the Swing
Line Loans owing to it be refunded, by delivering a Notice of Swing Line
Refunding. Upon receipt of a Notice of Swing Line Refunding the
Administrative Agent shall promptly give notice of the contents thereof to
the Banks and, unless an Event of Default described in Section 10(h) in
respect of the Company or the relevant Borrower has occurred, to the Company
and the relevant Borrower. Each such Notice of Swing Line Refunding shall be
deemed to constitute delivery by such Borrower of a Notice of Borrowing of
Committed Rate Eurocurrency Loans in the amount and Currency of the Swing
Line Loans to which it relates, for an Interest Period of one month's
duration. Subject to the terms and conditions hereof, each Bank (including
each Swing Line Bank in its capacity as a Bank having a Commitment) hereby
agrees to make a Committed Rate Loan to such Borrower pursuant to Section 2
in an amount equal to such Bank's Borrowing Percentage of the aggregate
amount of the Swing Line Loans to which such Notice of Swing Line Refunding
relates. Unless any of the events described in Section 10(h) in respect of
the Company or such Borrower shall have occurred (in which case the
procedures of subsection 4.4(b) shall apply), each Bank shall make the amount
of such Committed Rate Loan available to the Administrative Agent at the
Funding Office, and at or prior to the Funding Time, for the Currency of such
Loan in funds immediately available to the Administrative Agent. The
proceeds of such Committed Rate Loans shall be immediately made available to
such Swing Line Bank by the Administrative Agent and applied by such Swing
Line Bank to repay the Swing Line Loans to which such Notice of Swing Line
Refunding related.
(b) If prior to the time a Committed Rate Loan would have otherwise
been made pursuant to subsection 4.4(a), one of the events described in
Section 10(h) shall have occurred in respect of the Company or the relevant
Borrower, each Bank (other than the relevant Swing Line Bank) shall, on the
date such Committed Rate Loan would have been made pursuant to the Notice of
Swing Line Refunding referred to in subsection 4.4(a) (the "Refunding Date"),
purchase an undivided participating interest in the outstanding Swing Line
Loans to which such Notice of Swing Line Refunding related, in an amount
equal to (i) such Bank's Commitment Percentage times (ii) the aggregate
principal amount of such Swing Line Loans then outstanding which were to have
been repaid with Committed Rate Loans (the "Swing Line Participation
Amount"). On the Refunding Date, (x) each Bank shall transfer to such Swing
Line Bank, in immediately available funds, such Bank's Swing Line
Participation Amount, and upon receipt thereof such Swing Line Bank shall, if
requested by any Bank, deliver to such Bank a participation certificate dated
the date of such Swing Line Bank's receipt of such funds and evidencing such
Bank's ownership of its Swing Line Participation Amount and (y) the interest
rate on the applicable Swing Line Loan will automatically be converted to the
applicable Eurocurrency Rate with an Interest Period of one month plus the
Applicable Margin. If any amount required to be paid by any Bank to any Swing
Line Bank pursuant to this subsection 4.4 in respect of any Swing Line
Participation Amount is not paid to such Swing Line Bank on the date such
payment is due from such Bank, such Bank shall pay to such Swing Line Bank on
demand an amount equal to the product of (i) such amount, times (ii) (A) in
the case of any such payment obligation denominated in Dollars, the daily
average Federal funds rate, as quoted by such Swing Line Bank, or (B) in the
case of any such payment obligation denominated in an Available Foreign
Currency, the rate customary in such Currency for settlement of similar
inter-bank obligations, as quoted by such Swing Line Bank, in each case
during the period from and including the date such payment is required to the
date on which such payment is immediately available to the Swing Line Bank,
times (iii) a fraction the numerator of which is the number of days that
elapse during such period and the denominator of which is 360. A certificate
of a Swing Line Bank submitted to any Bank with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after any Swing Line Bank has received from
any Bank such Bank's Swing Line Participation Amount, such Swing Line Bank
receives any payment on account of the related Swing Line Loans, such Swing
Line Bank will distribute to such Bank its Commitment Percentage of such
payment on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Bank's participating interest was outstanding and funded);
provided, however, that in the event that such payment received by such Swing
Line Bank is required to be returned, such Bank will return to such Swing
Line Bank any portion thereof previously distributed to it by such Swing Line
Bank.
(d) Each Bank's obligation to make Committed Rate Loans pursuant to
subsection 4.4(a) and to purchase participating interests pursuant to
subsection 4.4(b) shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Bank may have
against any other Bank or any Borrower, or any Borrower may have against any
Bank or any other Person, as the case may be, for any reason whatsoever; (ii)
the occurrence or continuance of a Default or an Event of Default; (iii) any
adverse change in the condition (financial or otherwise) of the Company or
any of its Subsidiaries; (iv) any breach of this Agreement by any party
hereto; or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANSSECTION 5. CERTAIN
PROVISIONS APPLICABLE TO THE LOANS tc \l 1 "SECTION 5. CERTAIN PROVISIONS
APPLICABLE TO THE LOANS"
5.1 Facility Fee; Utilization Fee; Other Fees; Other Payments5.1 Facility
Fee; Utilization Fee; Other Fees; Other Payments tc \l 2 "5.1 Facility Fee;
Utilization Fee; Other
Fees; Other Payments".
(a) The Company shall pay to the Administrative Agent for the account of
each Bank a facility fee for the period from and including the Closing Date
to, but excluding, the Termination Date, computed at the Facility Fee Rate in
effect from time to time on the average daily amount of the Commitment (used
and unused) of such Bank during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June, September and
December and on the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein, commencing on the first of
such dates to occur
after the date hereof.
(b) The Company shall pay to the Administrative Agent for the account of
each Bank a utilization fee of 0.125% per annum on such Bank's Commitment
Percentage of the aggregate outstanding principal amount of Committed Rate
Loans and Swing Line Loans ("Aggregate Committed Outstandings") for each day
on which the Aggregate Committed Outstandings are equal to or exceed 33-1/3%
of the aggregate Commitments, payable quarterly in arrears on the last day of
each March, June, September and December and on the Termination Date or such
earlier date on which the Commitments shall terminate as provided herein,
commencing on the first of such dates to occur after the date hereof.
(c) The Company agrees to pay to the Administrative Agent, for its own
account and for the account of the Arranger, the fees in the amounts and on
the dates agreed to by such parties in writing prior to the date of this
Agreement.
5.2 Computation of Interest and Fees5.2 Computation of Interest and Fees tc
\l 2 "5.2 Computation of Interest and Fees".
(a) Facility and utilization fees and, whenever it is calculated on the
basis of the Prime Rate, interest shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed; and,
otherwise, interest shall be calculated on the basis of a 360-day year for
the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the relevant Borrower and the Banks of each determination
of a Eurocurrency Rate. Any change in the ABR due to a change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively. The Administrative Agent shall as soon as practicable notify
the relevant Borrower and the Banks of the effective date and the amount of
each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding
on the Borrowers and the Banks in the absence of manifest error.
5.3 Pro Rata Treatment and Payments5.3 Pro Rata Treatment and Payments tc
\l 2 "5.3 Pro Rata Treatment and Payments".
(a) Each payment by the Company on account of any facility fee or
utilization fee hereunder and any reduction of the Commitments of the Banks
shall be made pro rata according to the respective Commitment Percentages of
the Banks. Each disbursement of Committed Rate Loans shall be made by the
Banks pro rata according to the respective Commitment Percentages of the
Banks. Each payment (including each prepayment) by any Borrower on account
of principal of and interest on any Loans shall be made pro rata according to
the respective principal amounts of the Loans of such Borrower then due and
owing to the Banks. All payments (including prepayments) to be made by any
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim. All payments in
respect of Loans in any Currency shall be made in such Currency and in
immediately available funds at the Payment Office, and at or prior to the
Payment Time, for such Type of Loans and such Currency, on the due date
thereof. The Administrative Agent shall distribute to the Banks any payments
received by the Administrative Agent promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other
than a Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon
shall be payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in writing
by any Bank prior to a Borrowing Date in respect of Committed Rate Loans that
such Bank will not make the amount that would constitute its Commitment
Percentage of such borrowing available to the Administrative Agent, the
Administrative Agent may assume that such Bank is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor,
such Bank shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to (A) in the case of any such Committed
Rate Loans denominated in Dollars, the daily average Federal funds rate, as
quoted by the Administrative Agent, or (B) in the case of any Committed Rate
Loans denominated in an Available Foreign Currency, the rate customary in
such Currency for settlement of similar inter-bank obligations, as quoted by
the Administrative Agent, in each case for the period until such Bank makes
such amount immediately available to the Administrative Agent. A certificate
of the Administrative Agent submitted to any Bank with respect to any amounts
owing under this subsection shall be conclusive in the absence of manifest
error. If such Bank's Commitment Percentage of such borrowing is not made
available to the Administrative Agent by such Bank within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Swing Line Loans in such Currency hereunder, on demand, from the relevant
Borrower.
5.4 Illegality5.4 Illegality tc \l 2 "5.4 Illegality" . Notwithstanding
any other provision herein, if the adoption of or any change in any
Requirement of Law or in the interpretation thereof by any Governmental
Authority charged with the administration or interpretation thereof shall
make it unlawful for any Bank to make or maintain Eurocurrency Loans to one
or more Borrowers contemplated by this Agreement, the commitment of such Bank
hereunder to make Eurocurrency Loans, continue Eurocurrency Loans as such and
convert Loans to Eurocurrency Loans to such Borrowers shall forthwith be
canceled to the extent necessary to remedy or prevent such illegality.
Nothing in this subsection 5.4 shall affect the obligation of the Banks to
make and maintain ABR Loans to the Company and, to the extent not unlawful,
to Subsidiary Borrowers, notwithstanding that a Requirement of Law may make
it unlawful to make and maintain Eurocurrency Loans to such Borrowers.
5.5 Requirements of Law5.5 Requirements of Law tc \l 2 "5.5 Requirements
of Law".
(a) If the adoption of or any change in any Requirement of Law (other
than the Certificate of Incorporation and By-Laws or other organizational or
governing documents of the Banks) or in the interpretation or application
thereof or compliance by any Bank with any request or directive (whether or
not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Bank or any corporation controlling such Bank
or from which such Bank obtains funding or credit to any tax of any kind
whatsoever with respect to this Agreement, or any Eurocurrency Loan made by
it, or change the basis of taxation of payments to such Bank or such
corporation in respect thereof (except for Non-Excluded Taxes covered by
subsection 5.6 (including taxes excluded under the first sentence of
subsection 5.6(a)) and changes in the rate of tax on the overall net income
of such Bank or such corporation);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank or any corporation controlling such Bank or from which
such Bank obtains funding or credit which is not otherwise included in the
determination of the Eurocurrency Rate hereunder; or
(iii) shall impose on such Bank or any corporation controlling such
Bank or from which such Bank obtains funding or credit any other condition;
and the result of any of the foregoing is to increase the cost to such Bank
or such corporation, by an amount which such Bank or such corporation deems
to be material, of making, converting into, continuing or maintaining
Eurocurrency Loans or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Company shall promptly pay such Bank,
within five Business Days after its demand, any additional amounts necessary
to compensate such Bank for such increased cost or reduced amount receivable,
together with interest on each such amount from the date due until payment in
full at a rate per annum equal to the ABR plus 2%. If any Bank becomes
entitled to claim any additional amounts pursuant to this subsection, it
shall promptly notify the Company, through the Administrative Agent, of the
event by reason of which it has become so entitled. A certificate as to any
additional amounts payable pursuant to this subsection submitted by such
Bank, through the Administrative Agent, to the Company shall be conclusive in
the absence of manifest error. This covenant shall survive the termination
of this Agreement and the payment of Loans and all other amounts payable
hereunder.
(b) If any Bank shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank or from which such Bank obtains funding or
credit with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent
to the date hereof does or shall have the effect of reducing the rate of
return on such Bank's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Bank or such
corporation could have achieved but for such change or compliance (taking
into consideration such Bank's or such corporation's policies with respect to
capital adequacy) by an amount deemed by such Bank to be material, then from
time to time, after submission by such Bank to the Company (with a copy to
the Administrative Agent) of a written request therefor (which written
request shall be conclusive in the absence of manifest error), the Company
shall pay to such Bank such additional amount or amounts as will compensate
such Bank for such reduction.
(c) In addition to, and without duplication of, amounts which may
become payable from time to time pursuant to paragraphs (a) and (b) of this
subsection 5.5, each Borrower agrees to pay to each Bank which requests
compensation under this paragraph (c) by notice to such Borrower, on the last
day of each Interest Period with respect to any Committed Rate Eurocurrency
Loan made by such Bank to such Borrower, at any time when such Bank shall be
required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the Board (or, at any time when such Bank may be required by
the Board or by any other Governmental Authority, whether within the United
States or in another relevant jurisdiction, to maintain reserves against any
other category of liabilities which includes deposits by reference to which
the Eurocurrency Rate is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Bank which
includes any such Committed Rate Eurocurrency Loans), an additional amount
(determined by such Bank's calculation or, if an accurate calculation is
impracticable, reasonable estimate using such reasonable means of allocation
as such Bank shall determine) equal to the actual costs, if any, incurred by
such Bank during such Interest Period as a result of the applicability of the
foregoing reserves to such Committed Rate Eurocurrency Loans.
(d) A certificate of each Bank or Swing Line Bank setting forth such
amount or amounts as shall be necessary to compensate such Bank or Swing Line
Bank as specified in paragraph (a), (b) or (c) above, as the case may be, and
setting forth in reasonable detail an explanation of the basis of requesting
such compensation in accordance with paragraph (a) or (b) above, including
calculations in detail comparable to the detail set forth in certificates
delivered to such Bank in similar circumstances under comparable provisions
of other comparable credit agreements, shall be delivered to the relevant
Borrower and shall be conclusive absent manifest error. The relevant
Borrower shall pay each Bank or Swing Line Bank the amount shown as due on
any such certificate delivered to it within 10 days after its receipt of the
same.
(e) The agreements in this subsection shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
5.6 Taxes5.6 Xxxxx xx \x 0 "0.0 Xxxxx" . (x) All payments made by any
Borrower under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding, in the case of the
Administrative Agent and each Bank, (i) net income taxes, capital taxes,
doing business taxes and franchise taxes imposed on the Administrative Agent
or such Bank (including, without limitation, each Bank in its capacity as a
Swing Line Bank), as the case may be, as a result of a present or former
connection between the jurisdiction of the government or taxing authority
imposing such tax and the Administrative Agent or such Bank (excluding a
connection arising solely from the Administrative Agent or such Bank having
executed, delivered or performed its obligations or received a payment under,
or enforced, this Agreement) or any political subdivision or taxing authority
thereof or therein, (ii) taxes required to be withheld because of a failure
to deliver any certificate described in this subsection 5.6 for any reason
and (iii) any and all withholding taxes payable with respect to payments
under this Agreement made by the Company or by any Subsidiary Borrower that
was organized under the laws of the United States, the United Kingdom or
Germany other than any such withholding taxes imposed as a result of any
change in or amendment to the laws of such jurisdiction affecting taxation
(including any regulation or ruling proposed or promulgated by a taxing
authority thereof and any treaty provisions) or any change in the official
application, enforcement or interpretation of such laws, regulations, rulings
or treaties or any other action taken by a taxing authority or a court of
competent jurisdiction, which change, amendment, application, enforcement,
interpretation or action becomes effective after the date hereof (all such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Non-Excluded Taxes"). If any Non-
Excluded Taxes are required to be withheld from any amounts payable to the
Administrative Agent or any Bank hereunder, the amounts so payable to the
Administrative Agent or such Bank shall be increased to the extent necessary
to yield to the Administrative Agent or such Bank (after payment of all Non-
Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement. Whenever any Non-
Excluded Taxes are payable by any Borrower, as promptly as possible
thereafter such Borrower shall send to the Administrative Agent for its own
account or for the account of such Bank, as the case may be, a certified copy
of an original official receipt received by such Borrower showing payment
thereof. If such Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, such
Borrower shall indemnify the Administrative Agent and such Bank for any
incremental taxes, interest or penalties that may become payable by the
Administrative Agent or such Bank as a result of any such failure. The
agreements in this subsection 5.6(a) shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) (i) Each Bank (including each Assignee) that is not incorporated
under the laws of the United States of America or a state thereof agrees that
it will deliver to the Company and the Administrative Agent concurrently with
the delivery of this Agreement (or, in the case of any Assignee, concurrently
with the delivery of an Assignment and Acceptance) two duly completed copies
of (x) United States Internal Revenue Service Form W-8BEN or W-8ECI or
successor applicable form, as the case may be, and (y) an Internal Revenue
Service Form W-8BEN or W-9 or successor applicable form, as the case may be.
Each such Bank also agrees to deliver to the Company and the Administrative
Agent two further copies of the said Form W-8BEN or W-8ECI and Form W-8BEN or
W-9, or successor applicable forms or other manner of certification, as the
case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event (including, without limitation,
a change in such Bank's lending office) requiring a change in the most recent
form previously delivered by it to the Company and the Administrative Agent,
and such extensions or renewals thereof as may reasonably be requested by the
Company or the Administrative Agent, unless in any such case an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent
such Bank from duly completing and delivering any such form with respect to
it and such Bank so advises the Company and the Administrative Agent. Such
Bank shall certify (x) in the case of a Form W-8BEN or W-8ECI, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (y) in the case of
a Form W-8BEN or W-9, that it is entitled to an exemption from United States
backup withholding tax.
(ii) Upon the written request of any Borrower, each Bank promptly
will provide to such Borrower and to the Administrative Agent, or file with
the relevant taxing authority (with a copy to the Administrative Agent) such
form, certification or similar documentation (each duly completed, accurate
and signed) as is required by the relevant jurisdiction in order to obtain an
exemption from, or reduced rate of Non-Excluded Taxes to which such Bank or
the Administrative Agent is entitled pursuant to an applicable tax treaty or
the law of the relevant jurisdiction; provided, however, such Bank will not
be required to (x) disclose information which in its reasonable judgment it
deems confidential or proprietary or (y) incur a cost if such cost would, in
its reasonable judgment, be substantial in comparison to the cost of the
Borrower under this subsection 5.6 of such Bank's failure to provide such
form, certification or similar documentation. Such Bank shall certify in the
case of any such form, certification or similar documentation so provided (to
the extent it may accurately and properly do so) that it is entitled to
receive payments under this Agreement without deduction or withholding, or at
a reduced rate of deduction or withholding of Non-Excluded Taxes.
(iii) A Bank shall be required to furnish a form under this
paragraph (b) only if it is entitled to claim an exemption from or a reduced
rate of withholding under applicable law. A Bank that is not entitled to
claim an exemption from or a reduced rate of withholding under applicable
law, promptly upon written request of the applicable Borrower, shall inform
the applicable Borrower in writing.
(c) If any Bank is, in its sole opinion, able to apply for any tax
credit, tax deduction or other reduction in tax (a "Tax Benefit") by reason
of any increased amount paid by the Company under this subsection 5.6, such
Bank will use reasonable efforts to obtain such Tax Benefit and, upon receipt
thereof will pay to the Company such amount, not exceeding the increased
amount paid by the Company, as it considers, in its sole opinion, to be equal
to the net after-tax value to such Bank of the Tax Benefit or such part
thereof allocable to such withholding or deduction, having regard to all of
such Bank's dealings giving rise to similar credits and to the cost of
obtaining the same, less any and all expenses incurred by such Bank in
obtaining such Tax Benefit (including any and all professional fees incurred
therewith); provided, however, that (i) no Bank shall be obligated by this
subsection 5.6 to disclose to the Company any information regarding its tax
affairs or computations, (ii) nothing in this subsection 5.6 shall interfere
with the right of each Bank to arrange its tax affairs as it deems
appropriate and (iii) nothing in this subsection 5.6 shall impose an
obligation on a Bank to obtain any Tax Benefit if, in such Bank's sole
opinion, to do so would (x) impose undue hardships, burdens or expenditures
on such Bank or (y) increase such Bank's exposure to taxation by the
jurisdiction in question.
5.7 Company's Options upon Claims for Increased Costs and Taxes.7 Company's
Options upon Claims for Increased Costs and Taxes tc \l 25 ".7 Company's
Options upon Claims for Increased Costs and Taxes" . In the event that any
Affected Bank shall decline to make Eurocurrency Loans pursuant to subsection
5.4 or shall have notified the Company that it is entitled to claim
compensation pursuant to subsection 5.5 or 5.6, the Company may exercise any
one or both of the following options:
(a) The Company may request one or more of the Banks which are not
Affected Banks to take over all (but not part) of any Affected Banks's then
outstanding Loans and to assume all (but not part) of any Affected Bank's
Commitments, if any. If one or more Banks shall so agree in writing
(collectively, the "Assenting Banks"; individually, an "Assenting Bank") with
respect to an Affected Bank, (i) the Commitments, if any, of each Assenting
Bank and the obligations of such Assenting Bank under this Agreement shall be
increased by its respective Allocable Share of the Commitments, if any, and
of the obligations of such Affected Bank under this Agreement and (ii) each
Assenting Bank shall make Loans to the Company, according to such Assenting
Bank's respective Allocable Share, in an aggregate principal amount equal to
the outstanding principal amount of the Loans and of such Affected Bank, on a
date mutually acceptable to the Assenting Banks, such Affected Bank and the
Company. The proceeds of such Loans, together with funds of the Company,
shall be used to prepay the Loans, together with all interest accrued thereon
and all other amounts owing to such Affected Bank hereunder (including any
amounts payable pursuant to subsection 5.8 in connection with such
prepayment), and, upon such assumption by the Assenting Bank and prepayment
by the Company, such Affected Bank shall cease to be a "Bank" for purposes of
this Agreement and shall no longer have any obligations or rights hereunder
(other than any obligations or rights which according to this Agreement shall
survive the termination of this Agreement).
(b) The Company may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any such Affected Bank hereunder,
and to purchase the outstanding Loans of such Affected Bank and such Affected
Bank's rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Affected Bank (unless such Affected Bank
agrees otherwise), for a purchase price equal to the outstanding principal
amount of the Loans of such Affected Bank plus (i) all interest accrued and
unpaid thereon and all other amounts owing to such Affected Bank hereunder
and (ii) any amount which would be payable to such Affected Bank pursuant to
subsection 5.8, and upon such assumption and purchase by the Replacement
Bank, such Replacement Bank, if it is not already a Bank, shall be deemed to
be a "Bank" for purposes of this Agreement and such Affected Bank shall cease
to be a "Bank" for purposes of this Agreement and shall no longer have any
obligations or rights hereunder (other than any obligations or rights which
according to this Agreement shall survive the termination of this Agreement).
5.8 Indemnity5.8 Indemnity tc \l 2 "5.8 Indemnity". Each Borrower agrees
to indemnify each Bank and to hold each Bank harmless from any loss or
expense (but excluding any lost profits) which such Bank may sustain or incur
as a consequence of (a) default by such Borrower in payment when due of the
principal amount of or interest on any Eurocurrency Loan, (b) default by such
Borrower in making a borrowing of, conversion into or continuation of
Eurocurrency Loans after such Borrower has given a notice requesting the same
in accordance with the provisions of this Agreement, (c) default by such
Borrower in making any prepayment of Eurocurrency Loans after such Borrower
has given a notice thereof in accordance with the provisions of this
Agreement, (d) the making of a prepayment or conversion of Eurocurrency Loans
on a day which is not the last day of an Interest Period with respect thereto
or (e) the prepayment of any Competitive Advance Loan, including, without
limitation, in each case, any such loss or expense arising from the
reemployment or repayment of funds obtained by such Bank or from fees payable
to terminate the deposits from which such funds were obtained. This covenant
shall survive the termination of this Agreement and the payment of the Loans
and all other amounts payable hereunder.
5.9 Determinations.9 Determinations tc \l 25 ".9 Determinations". In
making the determinations contemplated by subsection 5.5, 5.6 and 5.8, each
Bank may make such estimates, assumptions, allocations and the like that such
Bank in good faith determines to be appropriate. Upon request of the
Company, each Bank shall furnish to the Company, at any time after demand for
payment of an amount under subsection 5.5(a) or 5.8, a certificate outlining
in reasonable detail the computation of any amounts owing. Any certificate
furnished by a Bank shall be binding and conclusive in the absence of
manifest error.
5.10 Change of Lending Office.10 Change of Lending Office tc \x 00 ".00
Xxxxxx of Lending Office" . If an event occurs with respect to any Bank that
makes operable the provisions of subsection 5.4 or entitles such Bank to make
a claim under subsection 5.5 or 5.6, such Bank shall, if requested in writing
by the Company, to the extent not inconsistent with such Bank's internal
policies, use reasonable efforts to (a) designate another office or offices
for the making and maintaining of its Loans or (b) obtain a different source
of funds or credit, as the case may be, the designation or obtaining of which
will eliminate such operability or reduce materially the amount such Bank is
so entitled to claim, provided that such designation or obtaining would not,
in the sole discretion of such Bank, result in such Bank incurring any costs
unless the Company has agreed to reimburse such Bank therefor.
5.11 Company Controls on Exposure; Calculation of Exposure; Prepayment if
Exposure exceeds Commitments.11 Company Controls on Exposure; Calculation of
Exposure; Prepayment if Exposure exceeds Commitments tc \l 25 ".11 Company
Controls on Exposure; Calculation of Exposure; Prepayment if Exposure exceeds
Commitments" . (a) The Company will implement and maintain internal
accounting controls to monitor the borrowings and repayments of Loans by the
Borrowers, with the object of preventing any request for any Loan that would
result in (i) the Exposure of the Banks being in excess of the Commitments,
(ii) the Foreign Currency Exposure exceeding $100,000,000 or (iii) the
Company Guarantee Ratio exceeding 25%, and of promptly identifying and
remedying any circumstance where, by reason of changes in exchange rates, (i)
the aggregate amount of the Exposure exceeds the Commitments, (ii) the amount
of the Foreign Currency Exposure exceeds $100,000,000 or (iii) the Company
Guarantee Ratio exceeds 25%. In the event that at any time the Company
determines that (i) the aggregate amount of the Exposure of the Banks exceeds
the aggregate amount of the Commitments by more than 5%, (ii) the amount of
the Foreign Currency Exposure exceeds $100,000,000 or (iii) the Company
Guarantee Ratio exceeds 25%, the Company will, as soon as practicable but in
any event within five Business Days of making such determination, make or
cause to be made such repayments or prepayments of Loans as shall be
necessary to cause (i) the aggregate amount of the Exposure of the Banks to
no longer exceed the Commitments, (ii) the amount of the Foreign Currency
Exposure not to exceed $100,000,000 and (iii) the Company Guarantee Ratio not
to exceed 25%.
(b) The Administrative Agent will calculate the aggregate amount of the
Exposure of the Banks from time to time, and in any event not less frequently
than once during each calendar month. In making such calculations, the
Administrative Agent will rely on the information most recently received by
it from the Swing Line Banks in respect of outstanding Swing Line Loans, and
from Banks in respect of outstanding Competitive Advance Loans. Upon making
each such calculation, the Administrative Agent will inform the Company and
the Banks of the results thereof.
(c) In the event that on any date the Administrative Agent calculates
that (i) the aggregate amount of the Exposure of the Banks exceeds the
aggregate amount of the Commitments by more than 5%, (ii) the Foreign
Currency Exposure exceeds $100,000,000 or (iii) the Company Guarantee Ratio
exceeds 25%, the Administrative Agent will give notice to such effect to the
Company. After receipt of any such notice, the Company will, as soon as
practicable but in any event within five Business Days of receipt of such
notice, make or cause to be made such repayments or prepayments of Loans as
shall be necessary to cause (i) the aggregate amount of the Exposure of the
Banks to no longer exceed the Commitments, (ii) the Foreign Currency Exposure
not to exceed $100,000,000 and (iii) the Company Guarantee Ratio not to
exceed 25%.
(d) If at any time the Committed Exposure of any Bank exceeds such
Bank's Commitment, upon demand of such Bank, the Company will within one
Business Day prepay Loans in such amounts that after giving effect to such
prepayment the Committed Exposure of such Bank does not exceed its
Commitment.
(e) Any prepayment required to be made pursuant to this subsection 5.11
shall be accompanied by payment of amounts payable, if any, pursuant to
subsection 5.8 in respect of the amount so prepaid.
5.12 Extensions of Termination Date for Commitments5.12 Extensions of
Termination Date for Commitments tc \l 2 "5.12 Extensions of Termination
Date for Commitments".
(a) The Company may from time to time request that the Banks extend by
364 days the Termination Date then in effect (an "Existing Termination Date")
for the Commitments by delivering a request in writing for such extension to
the Administrative Agent (who shall forward such request to the Banks
promptly and in any event no later than 5 days after receipt thereof) not
more than 45 days, and not less than 30 days, prior to the Existing
Termination Date. Each Bank shall notify the Company, not less than 20 days
prior to the Existing Termination Date, whether such Bank is willing to grant
such extension. If the Company does not so receive from any Bank or the
Administrative Agent (on any Bank's behalf) such written acceptance, then the
Company's request shall be deemed denied with respect to such Bank. In the
event that a Bank elects to extend the Existing Termination Date, then
(regardless of whether any other Bank has elected to so extend) the
Termination Date for such Bank shall be extended until the date which is 364
days following the Existing Termination Date; provided that in the event that
a Default or Event of Default has occurred and is continuing on the 30th day
prior to the Existing Termination Date, such extension shall not be effective
unless the same shall also have been approved by the Administrative Agent.
In the event that the Existing Termination Date is not extended as to a Bank,
then the Commitment of such Bank automatically shall terminate in whole on
the Existing Termination Date without any further notice or other action by
the Company, such Bank or any other Person and the Company may, at its option
(at any time prior to or on such Existing Termination Date), either:
(i) designate an alternate bank or financial institution (which may
but need not be an existing Bank) to purchase an assignment of such Bank's
Commitment and Loans (which alternate bank or financial institution shall
purchase such assignment prior to such Existing Termination Date), provided
that no Bank shall be obligated to make any such assignment as a result of a
demand by the Company pursuant to this subsection 5.12(a)(i) unless and until
such Bank shall have received one or more payments from either the Company or
one or more assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Loans owing to such Bank, together with
accrued interest thereon to the date of payment of such principal amount and
all other amounts payable to such Bank under this Agreement as of such date;
(ii) during such time as no Default or Event of Default has occurred
and is continuing, repay such Bank's Loans and all other amounts payable to
such Bank under this Agreement and terminate such Bank's Commitment (without
regard to any requirement contained herein that payments and Commitment
reductions be made ratably among the Banks); or
(iii) with the consent of the Required Banks so long as any Default or
Event of Default has occurred and is continuing, repay such Bank's Loans and
all other amounts payable to such Bank under this Agreement and terminate
such Bank's Commitment (without regard to any requirement contained herein
that payments and Commitment reductions be made ratably among the Banks).
Nothing contained herein shall be deemed to obligate any Bank or the
Administrative Agent to agree to any request made by the Company for the
extension of the Termination Date.
(b) The Company and any Bank that grants an extension of the Termination
Date may agree to extend the maturity of a Competitive Advance Loan made by
such Bank beyond the Existing Maturity Date, provided that such Loan as so
extended may not mature later than 180 days after the date such Loan was
originally made.
SECTION 6. REPRESENTATIONS AND WARRANTIESSECTION 6. REPRESENTATIONS AND
WARRANTIES tc \l 1 "SECTION 6. REPRESENTATIONS AND WARRANTIES"
To induce the Agents, the Administrative Agent and the Banks to enter into
this Agreement and to make the Loans, the Company and each Subsidiary
Borrower (insofar as the representations and warranties by such Subsidiary
Borrower relate to it) hereby represents and warrants to each Agent, the
Administrative Agent and each Bank that:
6.1 Financial Condition6.1 Financial Condition tc \l 2 "6.1 Financial
Condition" . The audited consolidated balance sheets of the Company and its
consolidated Subsidiaries as at December 31, 1998 and the related
consolidated statements of income and of cash flows for the fiscal year ended
on such date, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to each Bank or will be furnished to each Bank that
has not already received such copies, present fairly the consolidated
financial condition of the Company and its consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. The unaudited
consolidating balance sheet of the Company and its consolidated Subsidiaries
by principal operating group as at September 30, 1999, the related unaudited
consolidating statement of operations and retained earnings for the portion
of the fiscal year ended on September 30, 1999, and the press release of the
Company with respect to its earnings for fiscal year ended December 31, 1999
(dated February 23, 2000), certified by a Responsible Officer, copies of
which have heretofore been furnished to each Bank or will be furnished to
each Bank that has not already received such copies, present fairly the
consolidating financial condition of the Company and its consolidated
Subsidiaries by principal operating group as at such date, and the
consolidating results of their operations for the fiscal year then ended.
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein). Neither
the Company nor any of its consolidated Subsidiaries had, at the date of the
most recent balance sheet referred to above, any material Guarantee
Obligation, contingent liability or liability for taxes, or any long-term
lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange
transaction, which is not reflected in the foregoing statements or referred
to in the notes thereto. During the period from September 30, 1999 to and
including the date hereof there has been no sale, transfer or other
disposition by the Company or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other
acquisition of any business or property (including any Capital Stock of any
other Person) material in relation to the consolidated financial condition of
the Company and its consolidated Subsidiaries at September 30, 1999 (except
as otherwise disclosed in writing to the Banks prior to the Closing Date).
6.2 No Change6.2 No Change tc \l 2 "6.2 No Change" . Since December 31,
1998 there has been no development or event which has had or could reasonably
be expected to have a Material Adverse Effect.
6.3 Corporate Existence; Compliance with Law6.3 Corporate Existence;
Compliance with Law tc \l 2 "6.3 Corporate Existence; Compliance with Law"
. Each of the Company and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate or other power and authority, and the
legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified as a foreign corporation or other entity and
in good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification, except where the failure to be duly qualified or in good
standing could not reasonably be expected to have a Material Adverse Effect,
and (d) is in compliance with all Requirements of Law except to the extent
that the failure to comply therewith could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
6.4 Corporate Power; Authorization; Enforceable Obligations6.4 Corporate
Power; Authorization; Enforceable Obligations tc \l 2 "6.4 Corporate Power;
Authorization; Enforceable Obligations" . Each of the Company and its
Subsidiaries has the corporate or other power and authority, and the legal
right, to make, deliver and perform the Credit Documents to which it is a
party and to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement and
the execution, delivery and performance of the Credit Documents to which it
is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Credit Documents.
This Agreement has been, and each other Credit Document to which the Company
or any of its Subsidiaries is a party will be, duly executed and delivered on
behalf of the Company or such Subsidiary, as the case may be. This Agreement
constitutes, and each other Credit Document to which it is a party when
executed and delivered will constitute, a legal, valid and binding obligation
of the Company or any of its Subsidiaries party thereto enforceable against
the Company or such Subsidiary, as the case may be, in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at
law).
6.5 No Legal Bar6.5 No Legal Bar tc \l 2 "6.5 No Legal Bar" . The
execution, delivery and performance of the Credit Documents to which the
Company or any of its Subsidiaries is a party, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation of the Company or of any of its Subsidiaries (except
for violations of Contractual Obligations which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect) and will not result in, or require, the creation or imposition of any
Lien on any of its or their respective properties or revenues pursuant to any
such Requirement of Law or Contractual Obligation, except for the Liens
expressly permitted by subsection 9.3.
6.6 No Material Litigation6.6 No Material Litigation tc \l 2 "6.6 No
Material Litigation" . No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Company, threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or revenues
with respect to any of the Credit Documents or any of the transactions
contemplated hereby or thereby.
6.7 No Default6.7 No Default tc \l 2 "6.7 No Default". No Default or
Event of Default has occurred and is continuing.
6.8 Ownership of Property; Liens6.8 Ownership of Property; Liens tc \l 2
"6.8 Ownership of Property; Liens" . Each of the Company and its
Subsidiaries has good record and marketable title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, and none of such
property is subject to any Lien except as permitted by subsection 9.3.
6.9 Intellectual Property6.9 Intellectual Property tc \l 2 "6.9
Intellectual Property". Each of the Company and its Subsidiaries owns, or is
licensed to use, all domestic and foreign trademarks, tradenames, copyrights,
technology, know-how and processes necessary for the conduct of its business
as currently conducted (the "Intellectual Property"). No claim has been
asserted and is pending or, to the knowledge of the Company, has been
threatened by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Company know of any valid basis for any
such claim. The use of such Intellectual Property by the Company and its
Subsidiaries does not infringe on the rights of any Person.
6.10 Year 2000 Matters6.10 Year 2000 Matters tc \l 2 "6.10 Year 2000
Matters". Any reprogramming required to permit the proper functioning, in
and following the year 2000, of (i) the Company's computer systems and (ii)
equipment containing embedded microchips (including systems and equipment
supplied by others or with which Company's systems interface) and the testing
of all such systems and equipment, as so reprogrammed, was completed by
December 31, 1999. The cost to the Company of such reprogramming and testing
and of the reasonably foreseeable consequences of year 2000 to the Company
(including, without limitation, reprogramming errors and, to the best
knowledge of the Company, the failure of others' systems or equipment) will
not result in a Default or a Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Company and its
Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to permit the
Company to conduct its business without Material Adverse Effect.
6.11 Taxes6.11 Taxes tc \l 2 "6.11 Taxes". Each of the Company and its
consolidated Subsidiaries has filed or caused to be filed all tax returns
which, to the knowledge of the Company, are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any assessments
made against it or any of its property and all other taxes, fees or other
charges imposed on it or any of its property by any Governmental Authority
(other than any unfiled tax returns for taxes, and unpaid taxes, fees and
other charges, (a) the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
Company or its consolidated Subsidiaries, as the case may be, or (b) which in
each case, individually or in the aggregate, would not cause the Company and
its consolidated Subsidiaries to have a liability in excess of $5,000,000 or
the Dollar Equivalent Amount thereof); no notice of tax Lien has been filed,
and, to the knowledge of the Company, no claim is being asserted by any
taxing authority, with respect to any such tax, fee or other charge except
for claims the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the Company or its
consolidated Subsidiaries, as the case may be, and claims for amounts which,
in the aggregate, do not exceed $5,000,000.
6.12 Federal Regulations6.12 Federal Regulations tc \l 2 "6.12 Federal
Regulations". No part of the proceeds of any Loans will be used for
"purchasing" or "carrying" any "margin stock" within the respective meanings
of each of the quoted terms under Regulation U of the Board of Governors of
the Federal Reserve System as now and from time to time hereafter in effect
or for any purpose which violates the provisions of the regulations of such
Board of Governors. If requested by any Bank or the Administrative Agent,
the Company will furnish to the Administrative Agent and each Bank a
statement to the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in said Regulation U.
6.13 ERISA6.13 XXXXX xx \x 0 "0.00 XXXXX". Each Plan which is intended
to be qualified under Section 401(a) (or 403(a) as appropriate) of the Code
and each related trust agreement, annuity contract or other funding
instrument which is intended to be tax-exempt under Section 501(a) of the
Code is so qualified and tax-exempt and has been so qualified and tax-exempt
during the period from its adoption to date. No event has occurred in
connection with which the Company or any Commonly Controlled Entity or any
Plan, directly or indirectly, could reasonably be expected to be subject to
any material liability under ERISA, the Code or any other law, regulation or
governmental order or under any agreement, instrument, statute, rule of law
or regulation pursuant to or under which the Company or a Subsidiary has
agreed to indemnify or is required to indemnify any person against liability
incurred under, or for a violation or failure to satisfy the requirements of,
any such statute, regulation or order. No Reportable Event has occurred
during the five-year period prior to the date on which this representation is
made or deemed made with respect to any Plan, and each Plan has complied in
all material respects with the applicable provisions of ERISA and the Code.
The present value of all accrued benefits under each Single Employer Plan
maintained by the Company or any Commonly Controlled Entity or for which the
Company or any Commonly Controlled Entity has or could have any liability
(based on those assumptions used to fund the Plans) did not, as of the last
annual valuation date prior to the date on which this representation is made
or deemed made, exceed the value of the assets of such Plan allocable to such
accrued benefits. Neither the Company nor any Commonly Controlled Entity has
had a complete or partial withdrawal from any Multiemployer Plan, and neither
the Company nor any Commonly Controlled Entity could reasonably be expected
to become subject to any liability under ERISA if the Company or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent. The present value (determined using actuarial
and other assumptions which are reasonable in respect of the benefits
provided and the employees participating) of the unfunded liability of the
Company and each Commonly Controlled Entity for benefits under all unfunded
retirement or severance plans, programs, policies or other arrangements
(including, without limitation, post retirement benefits to be provided to
their current and former employees under Plans which are welfare benefit
plans (as defined in Section 3(1) of ERISA)), whether or not funded does not,
in the aggregate, exceed $5,000,000 (excluding those arrangements set forth
on Schedule 6.13).
6.14 Investment Company Act; Other Regulations6.14 Investment Company Act;
Other Regulations tc \l 2 "6.14 Investment Company Act; Other Regulations".
Neither the Company nor any Subsidiary of the Company is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended. Neither the
Company nor any Subsidiary of the Company is subject to regulation under any
Federal or State statute or regulation which limits its ability to incur
Indebtedness.
6.15 Subsidiaries6.15 Subsidiaries tc \l 2 "6.15 Subsidiaries". On the
Closing Date, the only Subsidiaries of the Company, and the only material
partnerships or joint ventures in which the Company or any Subsidiary has an
interest, are those set forth on Schedule 6.15. On the Closing Date, the
Company owns the percentage of the issued and outstanding Capital Stock or
other evidences of the ownership of each Subsidiary, partnership or joint
venture set forth on Schedule 6.15 as set forth on such Schedule. On the
Closing Date, except as set forth on Schedule 6.15, no such Subsidiary,
partnership or joint venture has issued any securities convertible into
shares of its Capital Stock. The outstanding stock and securities (or other
evidence of ownership) of such Subsidiaries, partnerships or joint ventures
owned by the Company and its Subsidiaries are owned by the Company and its
Subsidiaries free and clear of all Liens, warrants, options or rights of
others of any kind whatsoever except for Liens permitted by subsection 9.3.
6.16 Accuracy and Completeness of Information6.16 Accuracy and Completeness
of Information tc \l 2 "6.16 Accuracy and Completeness of Information". No
document furnished or statement made in writing to the Banks by the Company
in connection with the negotiation, preparation or execution of this
Agreement or any of the other Credit Documents contains any untrue statement
of a material fact, or omits to state any such material fact necessary in
order to make the statements contained therein not misleading, in either case
which has not been corrected, supplemented or remedied by subsequent
documents furnished or statements made in writing to the Banks. All other
written information, reports and other papers and data with respect to the
Company and its Subsidiaries (other than financial statements), furnished to
the Banks by the Company, or on behalf of the Company, were (a) in the case
of those not prepared for delivery to the Banks, to the Company's knowledge,
at the time the same were so furnished, complete and correct in all material
respects for the purposes for which the same were prepared and (b) in the
case of those prepared for delivery to the Banks, to the Company's knowledge,
complete and correct in all material respects, or have been subsequently
supplemented by other information, reports or other papers or data, to the
extent necessary to give the Banks a true and accurate knowledge of the
subject matter in all material respects, it being understood that financial
projections as to future events are not to be viewed as facts and that actual
results may differ from projected results.
6.17 Purpose of Loans6.17 Purpose of Loans tc \l 2 "6.17 Purpose of
Loans". The proceeds of the Loans shall be used by the Company for working
capital purposes in the ordinary course of business and for general corporate
purposes of the Company (including, without limitation, as backup for the
Company's commercial paper program) and, to the extent permitted hereunder,
its Subsidiaries.
6.18 Senior Indebtedness6.18 Senior Indebtedness tc \l 2 "6.18 Senior
Indebtedness". The principal of and interest on the Loans, the Reimbursement
Obligations and the Company's obligations under the Company Guarantee are and
will continue to be within the definition of "Senior Indebtedness" or any
similar term under the Subordinated Debentures.
6.19 Environmental Matters.19 Environmental Matters tc \x 00 ".00
Xxxxxxxxxxxxx Xxxxxxx". Except as set forth on Schedule 6.19 or insofar as
there is no reasonable likelihood of a Material Adverse Effect arising from
any combination of facts or circumstances inconsistent with any of the
following:
(a) The facilities and properties owned or operated by the Company or
any of its Subsidiaries (the "Properties") do not contain, and to the
knowledge of the Company or its Subsidiaries, have not previously contained,
any Materials of Environmental Concern in amounts or concentrations which (i)
constitute or constituted a violation of, or (ii) could reasonably be
expected to give rise to liability under, any applicable Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance with all applicable Environmental Laws, and there is no
contamination at, under or to the knowledge of the Company about the
Properties or violation of any Environmental Law with respect to the
Properties or the business operated by the Company or any of its Subsidiaries
(the "Business") which could materially interfere with the continued
operation of the Properties.
(c) Neither the Company nor any of its Subsidiaries has received any
notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the Business, nor
does the Company or any of its Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
(d) To the knowledge of the Company or any of its Subsidiaries,
Materials of Environmental Concern have not been transported or disposed of
from the Properties in violation of, or in a manner or to a location which
could reasonably be expected to give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could reasonably be expected
to give rise to liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Company or any of its Subsidiaries,
threatened, under any Environmental Law to which the Company or any
Subsidiary is or will be named as a party with respect to the Properties or
the Business, nor are there any consent decrees or other decrees, consent
orders, administrative orders or other orders, or other analogous
administrative or judicial requirements outstanding under any Environmental
Law with respect to the Properties or the Business.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Company or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably give rise to liability under
any applicable Environmental Laws.
SECTION 7. CONDITIONS PRECEDENTSECTION 7. CONDITIONS PRECEDENT tc \l 1
"SECTION 7. CONDITIONS PRECEDENT"
7.1 Conditions to Closing Date7.1 Conditions to Closing Date tc \l 2 "7.1
Conditions to Closing Date". The occurrence of the Closing Date, and the
agreement of each Bank to make the initial Loan requested to be made by it on
or after the Closing Date, shall be subject to the satisfaction, on or prior
to the Closing Date, of the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank, (ii) for the account of each Bank,
the Company Guarantee executed and delivered by a duly authorized officer of
the Company, with a counterpart or conformed copy for each Bank and (iii)
each Initial Subsidiary Guarantee, executed and delivered by a duly
authorized officer of the Guarantor party thereto, with a counterpart or a
conformed copy for each Bank.
(b) Corporate Proceedings of each Loan Party. The Administrative Agent
shall have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the Administrative Agent,
of the Board of Directors of each Loan Party (except any Foreign Subsidiary
Borrower) authorizing (i) the execution, delivery and performance of each
Credit Document to which it is a party and (ii) in the case of each Borrower
(except any Foreign Subsidiary Borrower), the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of such
Borrower as of the Closing Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(c) Fees and Expenses. The Administrative Agent shall have received
the fees and expenses to be received on or prior to the Closing Date pursuant
to subsection 5.1(c).
(d) Legal Opinions. The Administrative Agent shall have received, with
a counterpart for each Bank, the following executed legal opinions:
(i) the executed legal opinion of Milbank, Tweed, Xxxxxx & XxXxxx
LLP, counsel to the Company and the Subsidiary Borrowers, substantially in
the form of Exhibit G-1, with such modifications therein as shall be
reasonably requested or approved by the Administrative Agent; and
(ii) the executed legal opinion of Xxxxxx X. Xxxxxxx, general
counsel of the Company, substantially in the form of Exhibit G-2, with such
modifications therein as shall be reasonably requested or approved by the
Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement and the other Credit Documents as
the Administrative Agent may reasonably require.
(e) No Material Litigation. No litigation, inquiry, injunction or
restraining order shall be pending, entered or threatened (including any
proposed statute, rule or regulation) which in the reasonable judgment of any
Bank could have a Material Adverse Effect.
(f) Amendments of 1995 Credit Agreement. The Administrative Agent
shall have received copies of any amendments, modifications or waivers to the
1995 Credit Agreement required to permit the transactions contemplated
hereby.
(g) Notice of Guarantee Ceiling Amount. The Administrative Agent shall
have received with a counterpart for each Bank, a Notice of Guarantee Ceiling
Amount, dated the Closing Date, with appropriate insertions, executed by a
Responsible Officer of the Company.
(h) Existing Credit Agreement. Any principal, interest, fees or other
amounts owing or accrued and unpaid under the Existing Credit Agreement to
any Person which is a Bank under (and as defined in) the Existing Credit
Agreement shall have been paid in full to such Person.
(i) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents
shall be reasonably satisfactory in form and substance to the Administrative
Agent.
7.2 Conditions to Each Loan7.2 Conditions to Each Loan tc \l 2 "7.2
Conditions to Each Loan". The agreement of each Bank to make any Loan
requested to be made by it on any date (excluding any Committed Rate Loan
made pursuant to a Notice of Swing Line Refunding, or pursuant to subsection
2.6(c) if the Dollar Equivalent Amount thereof is not increased) is subject
to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Company and its Subsidiaries in or pursuant to the
Credit Documents (other than, in respect of each Loan made after the Closing
Date, subsection 6.2) shall be true and correct in all material respects on
and as of such date as if made on and as of such date except for
representations and warranties expressly stated to relate to a specific
earlier date, in which case such representations and warranties are true and
correct as of such earlier date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date after giving effect to the Loans requested to be
made on such date.
(c) No Material Adverse Change in Subsidiary Borrowers. If such Loan
is made to a Subsidiary Borrower, no event which has or could reasonably
expected to have a material adverse effect on the ability of such Subsidiary
Borrower to perform its obligations under this Agreement shall have occurred.
(d) Borrowing Certificate. In the case of the first requested
borrowing subsequent to the Closing Date, the Administrative Agent shall have
received with a counterpart for each Bank, a certificate of the Company,
dated as of such date, substantially in the form of Exhibit E, with
appropriate insertions and attachments, satisfactory in form and substance to
the Administrative Agent, executed by the President, Executive Vice President
or any Vice President and the Secretary or any Assistant Secretary of the
Company.
(e) Foreign Subsidiary Opinion. If such Loan is requested to be made
to a Foreign Subsidiary Borrower incorporated in England or Germany, the
Company shall deliver to the Administrative Agent on or prior to such date
(i) an executed Foreign Subsidiary Opinion of counsel to such Foreign
Subsidiary Borrower and (ii) a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors of such
Foreign Subsidiary Borrower authorizing (1) the execution, delivery and
performance of each Credit Document to which it is a party and (2) the
borrowings contemplated hereunder, certified by the Secretary or an Assistant
Secretary of such Foreign Subsidiary Borrower as of the Closing Date, which
certificate shall be in form and substance satisfactory to the Administrative
Agent and shall state that the resolutions thereby certified have not been
amended, modified, revoked or rescinded.
Each borrowing by any Borrower shall constitute a representation and warranty
by the Company and such Borrower as of the date of such Loan that the
conditions contained in this subsection 7.2 have been satisfied.
SECTION 8. AFFIRMATIVE COVENANTSSECTION 8. AFFIRMATIVE COVENANTS tc \l 1
"SECTION 8. AFFIRMATIVE COVENANTS"
The Company hereby agrees that, so long as the Commitments remain in effect,
any Loan remains outstanding and unpaid or any other amount is owing to any
Bank any Agent or the Administrative Agent hereunder, the Company shall and
(except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
8.1 Financial Statements8.1 Financial Statements tc \l 2 "8.1 Financial
Statements" . Furnish to each Bank:
(a) as soon as available, but in any event within 120 days after the
end of each fiscal year of the Company, a copy of the audited consolidated
balance sheet of the Company and its consolidated Subsidiaries as at the end
of such year and the related consolidated statements of operations and
shareholders equity and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Ernst & Young or
other independent certified public accountants of nationally recognized
standing reasonably acceptable to the Required Banks;
(b) as soon as available, but in any event within 120 days after the
end of each fiscal year of the Company, the unaudited consolidating balance
sheet of the Company and its consolidated Subsidiaries by principal operating
group as at the end of such year and the related unaudited consolidating
statements of operations of the Company and its consolidated Subsidiaries by
principal operating group for such year, setting forth in each case in
comparative form the figures for the previous year, certified pursuant to
subsection 8.2(b) by a Responsible Officer as fairly presenting the
consolidating financial condition and results of operations of the Company
and its consolidated Subsidiaries by
principal operating group;
(c) as soon as available, but in any event within 60 days after the end
of each of the first three quarterly periods of each fiscal year of the
Company, the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of operations and shareholders' equity and
of cash flows of the Company and its consolidated Subsidiaries for such
quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for such quarter
of the previous year, certified by a Responsible Officer as fairly presenting
in all material respects when considered in relation to the consolidated
financial statements of the Company and its consolidated Subsidiaries
(subject to normal year-end audit adjustments); provided that the Company may
in lieu of furnishing such unaudited consolidated balance sheet furnish to
each Bank its Form 10-Q filed with the Securities and Exchange Commission or
any successor or analogous Governmental Authority for the relevant quarterly
period; and
(d) as soon as available, but in any event within 60 days after the end
of each of the first three quarterly periods of each fiscal year of the
Company, the unaudited consolidating balance sheet of the Company and its
consolidated Subsidiaries by principal operating group as at the end of such
quarter and the related unaudited consolidating statements of operations of
the Company and its consolidated Subsidiaries by principal operating group
for such quarter and the portion of the fiscal year through the end of such
quarter, in the case of the unaudited consolidating balance sheet setting
forth in comparative form the figures for the previous year (but not the
corresponding figures for such quarter of the previous year) and in the case
of the statements of operations setting forth in comparative form the figures
for such quarter of the previous year, certified by a Responsible Officer as
fairly presenting the consolidating financial condition and results of
operations of the Company and its consolidated Subsidiaries by principal
operating group (subject to normal year-end audit adjustments); the financial
statements to be furnished pursuant to this subsection 8.1 shall fairly
present the consolidated (or consolidating by principal operating group, as
appropriate) financial position and results of operations of the Company and
its consolidated Subsidiaries in accordance with GAAP (subject, in the case
of subsections 8.1(c) and (d), to normal year-end audit adjustments and the
absence of complete footnotes) applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such
accountants or Responsible Officer, as the case may be, and disclosed
therein).
8.2 Certificates; Other Information8.2 Certificates; Other Information tc
\l 2
"8.2 Certificates; Other Information" . Furnish to each Bank:
(a) concurrently with the delivery of the financial statements referred
to in subsection 8.1(a), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making the
examination necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred
to in subsections 8.1(a) and 8.1(b), a certificate of a Responsible Officer
substantially in the form of Exhibit H;
(c) concurrently with the delivery of the financial statements referred
to in subsection 8.1(c), a certificate of a Responsible Officer (i) stating
that, to the best of such Responsible Officer's knowledge, the Company has
observed and performed all of its covenants and other agreements contained in
this Agreement and the other Credit Documents to which it is a party to be
observed or performed by it, (ii) that such Responsible Officer has obtained
no knowledge of any Default or Event of Default except as specified therein
and (iii) setting forth calculations supporting compliance with subsections
9.1(a), (b) and (c), 9.2 and 9.5;
(d) as soon as delivered, a copy of the letter, addressed to the
Company, of the certified public accountants who prepared the financial
statements referred to in subsection 8.1(a) for such fiscal year and
otherwise referred to as a "management letter";
(e) within five days after the same are sent, copies of all financial
statements and reports which the Company sends to its stockholders generally,
and within five days after the same are filed, copies of all financial
statements and reports which the Company or any of its Subsidiaries may make
to, or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(f) concurrently with the delivery of the financial statements referred
to in subsections 8.1(a) and 8.1(c) and upon any incurrence or prepayment of
any lien, guarantee or indebtedness which decreases the Guarantee Ceiling
Amount by more than 5%, a Notice of Guarantee Ceiling Amount as of the last
day of such fiscal period or as the date of such occurrence; and
(g) promptly, such additional documents, instruments, legal opinions or
financial and other information as the Administrative Agent or any Bank may
from time to time reasonably request.
8.3 Payment of Obligations8.3 Payment of Obligations tc \l 2 "8.3 Payment
of Obligations" . Pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all its obligations of
whatever nature, including, without limitation, all obligations in respect of
taxes, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Company
or its Subsidiaries, as the case may be, or where the failure to pay,
discharge or otherwise satisfy could not reasonably be expected to have a
Material Adverse Effect.
8.4 Conduct of Business and Maintenance of Existence8.4 Conduct of Business
and Maintenance of Existence tc \l 2 "8.4 Conduct of Business and
Maintenance of Existence". Continue to engage in business of the same
general type as now conducted by it and preserve, renew and keep in full
force and effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in the
normal conduct of its business except as otherwise permitted pursuant to
subsection 9.4; comply with all Contractual Obligations and Requirements of
Law except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
8.5 Maintenance of Property; Insurance8.5 Maintenance of Property;
Insurance tc \l 2 "8.5 Maintenance of Property; Insurance". Keep all
property useful and necessary in its business in good working order and
condition, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect; maintain with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or
a similar business; and furnish to each Bank, upon written request, full
information as to the insurance carried.
8.6 Inspection of Property; Books and Records; Discussions8.6 Inspection of
Property; Books and Records; Discussions tc \l 2 "8.6 Inspection of
Property; Books and Records; Discussions". Keep proper books of records and
account in which the entries are, in all material respects, full, true and
correct in conformity with sound business practice and all Requirements of
Law shall be made of all dealings and transactions in relation to its
business and activities; and, upon reasonable notice under the circumstances,
permit representatives of the Administrative Agent to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired and
to discuss the business, operations, properties and financial and other
condition of the Company and its Subsidiaries with officers and employees of
the Company and its Subsidiaries and with its independent certified public
accountants.
8.7 Notices8.7 Notices tc \l 2 "8.7 Notices". Promptly, after the
Company becomes aware thereof, give notice to the Administrative Agent and
each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Company
or any of its Subsidiaries and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect or cause a Default
or an Event of Default;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries (i) in which the amount involved is $5,000,000 or more and not
covered by insurance or (ii) in which injunctive or similar relief is sought
which could reasonably be expected to have a Material Adverse Effect;
(d) the following events: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a
Plan or any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan or (ii) the institution of proceedings or the
taking of any other action by the PBGC or the Company or any Commonly
Controlled Entity or any Multiemployer Plan with respect to the withdrawal
from, or the terminating (other than a standard termination under Section
4041(b) of ERISA), Reorganization or Insolvency of, any Plan;
(e) any change, development or event involving a prospective change,
which has had or could reasonably be expected to have a Material Adverse
Effect; and
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
8.8 Environmental Laws.8 Environmental Laws tc \l 28 ".8 Environmental
Laws". (a) Comply with, and take all reasonable efforts to ensure compliance
by all tenants and subtenants, if any, in all material respects with, all
applicable Environmental Laws and obtain and comply in all material respects
with and maintain, and undertake all reasonable efforts to ensure that all
tenants and subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being contested in
good faith by appropriate proceedings and the pendency of such proceedings
could not reasonably be expected to have a Material Adverse Effect.
8.9 Additional Subsidiary Guarantees.9 Additional Subsidiary Guarantees tc
\l 28 ".9 Additional Subsidiary Guarantees" . In the event that any
Domestic Subsidiary which is not a Guarantor shall account for more than 5%
of Total Assets at any date, take all actions necessary to cause such
Domestic Subsidiary to execute and deliver a Subsidiary Guarantee, within 60
days of the occurrence of such event.
SECTION 9. NEGATIVE COVENANTSSECTION 9. NEGATIVE COVENANTS tc \l 1
"SECTION 9. NEGATIVE COVENANTS"
The Company hereby agrees that, so long as the Commitments remain in effect,
any Loan remains outstanding and unpaid or any other amount is owing to any
Bank or the Administrative Agent hereunder:
9.1 Financial Condition Covenants9.1 Financial Condition Covenants tc \l 2
"9.1 Financial Condition Covenants" . The Company shall not:
(a) Maintenance of Indebtedness. Permit Consolidated Total Debt at any
time to exceed (a) from the Closing Date through December 31, 2000, an amount
equal to 60% of Consolidated Total Capitalization, and (b) thereafter, an
amount equal to 55% of Consolidated Total Capitalization.
(b) Maintenance of Net Worth. Permit Consolidated Net Worth at any
time to be less than an amount equal to the sum of $750,000,000 plus 40% of
cumulative Consolidated Net Income for the fiscal quarter commencing April 1,
1995 and for each fiscal quarter thereafter (without subtraction for any
fiscal quarter during which Consolidated Net Income is a negative number).
(c) Interest Coverage. Permit for any period of four consecutive
fiscal quarters at any time the ratio of Adjusted Consolidated EBITDA to
Consolidated Cash Interest Expense to be less than 3.0 to 1.0.
9.2 Limitation on Indebtedness of Domestic Subsidiaries9.2 Limitation on
Indebtedness of Domestic Subsidiaries tc \l 2 "9.2 Limitation on
Indebtedness of Domestic Subsidiaries". The Company shall not permit any of
its Domestic Subsidiaries to, and the Domestic Subsidiaries shall not,
directly or indirectly, create, incur, assume or suffer to exist any
Indebtedness, except (a) Indebtedness in an aggregate amount not to exceed
10% of Consolidated Net Worth, (b) any Indebtedness of Domestic Subsidiaries
pursuant to any of the Credit Documents and (c) any Indebtedness of the
Domestic Subsidiaries pursuant to the Subsidiary Guarantees under (and as
defined in) the 1995 Credit Agreement.
9.3 Limitation on Liens.3 Limitation on Liens tc \x 00 ".0 Xxxxxxxxxx on
Liens". The Company shall not, and shall not permit any of its Domestic
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its Domestic
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the Company
or such Domestic Subsidiary; and
(f) Liens (not otherwise permitted hereunder) which secure obligations
not exceeding (as to the Company and all Domestic Subsidiaries) a Dollar
Equivalent Amount equal to 5% of Consolidated Net Worth at any time
outstanding.
9.4 Limitation on Fundamental Changes9.4 Limitation on Fundamental Changes
tc \l 2 "9.4 Limitation on Fundamental Changes". The Company (a) shall
not, and shall not permit any of its Domestic Subsidiaries to, directly or
indirectly, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease, assign, transfer or otherwise dispose
of, all or substantially all of its property, business or assets and (b)
shall not, and shall not permit any of its Subsidiaries, to make any material
change in its present method of conducting business, except:
(i) any Subsidiary may be merged or consolidated with or into the
Company (provided that the Company shall be the continuing or surviving
corporation) or with or into any one or more wholly-owned Domestic
Subsidiaries; and
(ii) any Subsidiary may sell, lease, transfer or otherwise dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to the
Company or any other wholly owned Domestic Subsidiary.
9.5 Limitation on Modifications of Debt Instruments 9.5 Limitation on
Modifications of Debt Instruments tc \l 2 "9.5 Limitation on Modifications
of Debt Instruments" . The Company shall not, and shall not permit any of
its Subsidiaries to, directly or indirectly, amend, modify or change, or
consent or agree to any amendment, modification or change to any of the terms
of any Subordinated Indebtedness or any agreement which sets forth the terms
of any Subordinated Indebtedness, except amendments, modifications or changes
which would not (directly or indirectly) increase the amount of any payment
of principal thereof, increase the interest rate or premium payable thereon,
increase the amount of fees or any other amounts payable with respect
thereto, shorten the scheduled amortization or average weighted life thereof,
shorten the date for payment of interest thereon, shorten the final maturity
thereof or modify the subordination provisions thereof.
SECTION 10. EVENTS OF DEFAULTSECTION 10. EVENTS OF DEFAULT tc \l 1
"SECTION 10. EVENTS OF DEFAULT"
If any of the following events shall occur and be continuing:
(a) (i) Any Borrower shall fail to pay any principal of any Loan owing
by it when due (whether at the stated maturity, by acceleration or otherwise)
in accordance with the terms hereof; or (ii) any Borrower shall fail to pay
any interest on any Loan or any fee or any other amount payable hereunder,
within five days after any such interest or other amount becomes due in
accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the Company
or any Subsidiary herein or in any other Credit Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Credit Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) The Company or any Subsidiary shall default in the observance or
performance of any agreement contained in Section 9 and, with respect to
subsections 9.2 and 9.3, such default shall continue unremedied for a period
of 30 days; or
(d) The Company or any Subsidiary shall default in the observance or
performance of any other agreement contained in this Agreement or any other
Credit Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30 days
after the Company has knowledge thereof; or
(e) Any of the Credit Documents shall cease, for any reason, to be in
full force and effect, or the Company shall so assert in writing; or
(f) The subordination provisions applicable to any Subordinated
Indebtedness, for any reason, cease to be in full force and effect, or any
Person shall so assert to the Company in writing and the Company shall not
promptly contest such assertion; or
(g) The Company or any of its consolidated Subsidiaries shall (i)
default in any payment of principal of or interest of any Indebtedness (other
than the Loans) or in the payment of any Guarantee Obligation, in either case
with an outstanding principal amount in excess of a Dollar Equivalent Amount
equal to $5,000,000 when due beyond the period of grace, if any, provided in
the instrument or agreement under which such Indebtedness or Guarantee
Obligation was created; or (ii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness or
Guarantee Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to cause,
or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or agent on behalf
of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to become due prior to its
stated maturity or such Guarantee Obligation to become payable; or
(h) (i) Any Borrower or any Subsidiary that accounts for more than 5% of
Total Assets at any date shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or any Borrower or any such
Subsidiary shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against any Borrower or any such Subsidiary
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
any Borrower or any such Subsidiary any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or
(i) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any
Lien in favor of the PBGC or a Plan shall arise on the assets of the Company
or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Banks,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV
of ERISA, (v) the Company or any Commonly Controlled Entity shall, or in the
reasonable opinion of the Required Banks is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or exist
with respect to a Plan; and in each case in clauses (i) through (vi) above,
such event or condition, together with all other such events or conditions,
if any, could reasonably be expected to subject the Company to any tax,
penalty or other liabilities in the aggregate material in relation to the
business, operations, property or financial or other condition of the
Company; or
(j) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of a Dollar Equivalent Amount equal
to $5,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(k) The Company Guarantee or any Subsidiary Guarantee shall cease, for
any reason, to be in full force and effect or any Guarantor party thereto
shall so assert; or
(l) A Change in Control shall occur; then, and in any such event,
(A) if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (h) above with respect to the Company, automatically the
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement shall
become immediately due and payable and (B) if such event is any other Event
of Default, either or both of the following actions may be taken: (i) with
the consent of the Required Banks, the Administrative Agent may, or upon the
request of the Required Banks, the Administrative Agent shall, by notice to
the Company declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Required Banks, the Administrative Agent may, or upon the request of the
Required Banks, the Administrative Agent shall, by notice to the Company,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable.
Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
SECTION 11. THE ADMINISTRATIVE AGENT; THE ARRANGER AND OTHER AGENTSSECTION
11. THE ADMINISTRATIVE AGENT; THE ARRANGER AND OTHER AGENTS tc \l 1
"SECTION 11. THE ADMINISTRATIVE AGENT; THE ARRANGER AND OTHER AGENTS"
11.1 Appointment11.1 Appointment tc \l 2 "11.1 Appointment". Each Bank
hereby irrevocably designates and appoints Chase as the Administrative Agent
of such Bank under this Agreement and the other Credit Documents, and each
such Bank irrevocably authorizes Chase, as the Administrative Agent for such
Bank, to take such action on its behalf under the provisions of this
Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative
Agent shall not have any duties or responsibilities, except those expressly
set forth herein, or any fiduciary relationship with any Bank, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Credit Document or otherwise
exist against the Administrative Agent.
11.2 Delegation of Duties11.2 Delegation of Duties tc \l 2 "11.2
Delegation of Duties". The Administrative Agent may execute any of its
duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
11.3 Exculpatory Provisions11.3 Exculpatory Provisions tc \l 2 "11.3
Exculpatory Provisions" . Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
be (i) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement or any other Credit
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Company or
any officer thereof contained in this Agreement or any other Credit Document
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Credit Document or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Credit Document or for any failure of the Company
to perform its obligations hereunder or thereunder. The Administrative Agent
shall not be under any obligation to any Bank to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Credit Document, or to inspect the
properties, books or records of the Company.
11.4 Reliance by Administrative Agent11.4 Reliance by Administrative Agent
tc \l 2 "11.4 Reliance by Administrative Agent" . The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation,
counsel to the Company), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or
any other Credit Document unless it shall first receive such advice or
concurrence of the Required Banks or all of the Banks, as may be required
hereunder, as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected from liability
to the Banks in acting, or in refraining from acting, under this Agreement
and the other Credit Documents in accordance with a request of the Required
Banks or all of the Banks, as may be required hereunder, and such request and
any action taken or failure to act pursuant thereto shall be binding upon all
the Banks and their respective successors and assigns.
11.5 Notice of Default11.5 Notice of Default tc \l 2 "11.5 Notice of
Default". The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
the Administrative Agent has received notice from a Bank or the Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Banks. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks or all of the Banks, as may be
required hereunder; provided that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable
in the best interests of the Banks.
11.6 Non-Reliance on Administrative Agent and Other Banks11.6 Non-Reliance
on Administrative Agent and Other Xxxxx xx \l 2 "11.6 Non-Reliance on
Administrative Agent and Other Banks" . Each Bank expressly acknowledges
that neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Company,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Bank. Each Bank represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Bank, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement and the other Credit Documents to
which it is or will be a party. Each Bank also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the
other Credit Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Company and its Subsidiaries.
Except for notices, reports and other documents expressly required to be
furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of the Company and its Subsidiaries which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.7 Indemnification11.7 Indemnification tc \l 2 "11.7 Indemnification".
The Banks agree to indemnify the Administrative Agent in its capacity as such
(to the extent not reimbursed by the Company and without limiting the
obligation of the Company to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is
sought under this subsection (or, if indemnification is sought after the date
upon which the Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with their Commitment Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative
Agent or any in any way relating to or arising out of this Agreement, any of
the other Credit Documents or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent under or in connection
with any of the foregoing; provided that no Bank shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of
the Loans and all other amounts payable hereunder.
11.8 Administrative Agent in Its Individual Capacity11.8 Administrative
Agent in Its Individual Capacity tc \l 2 "11.8 Administrative Agent in Its
Individual Capacity" . The Administrative Agent and its Affiliates may make
loans to, accept deposits from and generally engage in any kind of business
with the Company and any of its Subsidiaries as though the Administrative
Agent were not the Administrative Agent hereunder and under the other Credit
Documents. With respect to its Loans made or renewed by it, the
Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any Bank and may exercise the
same as though it were not the Administrative Agent, and the terms "Bank" and
"Banks" shall include the Administrative Agent in its individual capacity.
11.9 Successor Administrative Agent11.9 Successor Administrative Agent tc
\l 2 "11.9 Successor Administrative Agent" . The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Banks; provided
that any such resignation shall not be effective until a successor agent has
been appointed and approved in accordance with this subsection 11.9, and such
successor agent has accepted its appointment. If the Administrative Agent
shall resign as Administrative Agent under this Agreement and the other
Credit Documents, then the Required Banks shall appoint from among the Banks
a successor administrative agent for the Banks, which successor agent shall
be approved by the Company (which approval shall not be unreasonably
withheld), whereupon such successor administrative agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement. After any retiring Administrative
Agent's resignation as Administrative Agent, the provisions of this
subsection shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Credit Documents.
11.10 The Arranger11.10 The Arranger tc \l 2 "11.10 The Arranger" , Co-
Agents, Syndication Agent and Documentation Agent. Each Bank acknowledges
that none of the Arranger, the Co-Agents, the Syndication Agent and the
Documentation Agent, in such respective capacity, shall have any duties or
responsibilities, or shall incur any liabilities, under this Agreement or the
other Credit Documents.
SECTION 12. MISCELLANEOUSSECTION 12. MISCELLANEOUS tc \l 1 "SECTION 12.
MISCELLANEOUS"
12.1 Amendments and Waivers12.1 Amendments and Waivers tc \l 2 "12.1
Amendments and Waivers" . (a) Neither this Agreement nor any other Credit
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Banks may, or, with the written consent of the Required Banks, the
Administrative Agent may, from time to time, (i) enter into with the Loan
Parties party thereto written amendments, supplements or modifications to
this Agreement and the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Banks or of the Loan Parties hereunder or thereunder
or (ii) waive, on such terms and conditions as the Required Banks or the
Administrative Agent, as the case may be, may specify in such instrument, any
of the requirements of this Agreement or the other Credit Documents or any
Default or Event of Default and its consequences; provided, however, that no
such waiver and no such amendment, supplement or modification shall (i)
reduce the amount or extend the scheduled date of maturity of any Loan or
reduce the stated rate of any interest or fee payable hereunder or extend the
scheduled date of any payment thereof or increase the aggregate amount or
extend the expiration date of any Bank's Commitment, in each case without the
consent of each Bank directly affected thereby, or (ii) amend, modify or
waive any provision of this subsection or reduce the percentage specified in
the definition of Required Banks, or consent to the assignment or transfer by
the Company of any of its rights and obligations under this Agreement and the
other Credit Documents or amend, modify or waive subsection 5.3(a) or
12.6(a), or release any Subsidiary from its Subsidiary Guarantee or release
the Company from the Company Guarantee, in each case without the written
consent of all the Banks, or (iii) amend, modify or waive any provision of
Section 11 without the written consent of the then Administrative Agent. Any
such waiver and any such amendment, supplement or modification shall apply
equally to each of the Banks and shall be binding upon the Company, the
Subsidiary Borrowers, the Banks, the Agents, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Company, the
Banks and the Administrative Agent shall be restored to their former position
and rights hereunder and under any other Credit Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but
no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), Schedules II, III and IV may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries of the Company
as additional Subsidiary Borrowers upon (A) execution and delivery by the
Company, any such Subsidiary Borrower and the Administrative Agent, of a
Joinder Agreement providing for any such Subsidiary to become a Subsidiary
Borrower, and (B) delivery to the Administrative Agent of (1) if reasonably
requested by the Administrative Agent, a legal opinion in respect of such
additional Subsidiary Borrower and (2) such other documents with respect
thereto as the Administrative Agent shall reasonably request.
(ii) Schedule II will be amended to remove any Subsidiary as a
Subsidiary Borrower upon (A) execution and delivery by the Company of a
Schedule Amendment providing for such amendment and (b) repayment in full of
all outstanding Loans of such Subsidiary Borrower.
(iii) Schedule III will be amended to designate other Banks as
additional or replacement Swing Line Banks upon execution and delivery by the
Company, the Administrative Agent and such additional or replacement Swing
Line Bank of a Schedule Amendment providing for such amendment. In the case
of any replacement of a Swing Line Bank pursuant to a Schedule Amendment, the
existing Swing Line Bank replaced pursuant thereto shall cease to be a Swing
Line Bank upon the effectiveness of such Schedule Amendment and the repayment
of all Swing Line Loans owing to such replaced Swing Line Bank.
(iv) Schedule III will be amended to change administrative
information (including the Swing Line Rate definition) with respect to Swing
Line Banks, upon execution and delivery by the Company, the Administrative
Agent and such Swing Line Bank of a Schedule Amendment providing for such
amendment.
(v) Schedule IV will be amended to change administrative
information contained therein (other than any interest rate definition,
Funding Time, Payment Time or notice time contained therein), upon execution
and delivery by the Company and the Administrative Agent of a Schedule
Amendment providing for such amendment.
(vi) Schedule IV will be amended to conform any Funding Time,
Payment Time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the Company, the Required Banks and
the Administrative Agent of a Schedule Amendment providing for such
amendment.
(vii) Schedule IV will be amended to change any interest rate
definition contained therein, upon execution and delivery by the Company, all
the Banks and the Administrative Agent of a Schedule Amendment providing for
such amendment.
(c) The Administrative Agent shall give prompt notice to each Bank of
any amendment effect pursuant to subsection 12.1(b).
(d) The Company may designate a Replacement Bank to assume the
Commitments, if any, and the obligations of any Bank (an "Objecting Bank")
that refuses to consent to an amendment, supplement or waiver that both
requires the consent of all the Banks in order to become effective and is
acceptable to one or more other Banks constituting the Required Banks, and to
purchase the outstanding Loans of such Objecting Bank and such Objecting
Bank's rights hereunder and with respect thereto, without recourse upon, or
warranty by, or expense to, such Objecting Bank (unless such Objecting Bank
agrees otherwise), for a purchase price equal to the outstanding principal
amount of the Loans of such Objecting Bank plus (i) all interest accrued and
unpaid thereon and all other amounts owing to such Objecting Bank hereunder
and (ii) any amount which would be payable to such Objecting Bank pursuant to
subsection 5.8 (assuming that all Loans of such Objecting Bank were prepaid
on the date of such assumption), and upon such assumption and purchase by the
Replacement Bank, such Replacement Bank, if it is not already a Bank, shall
be deemed to be a "Bank" for purposes of this Agreement and such Objecting
Bank shall cease to be a "Bank" for purposes of this Agreement and shall no
longer have any obligations or rights hereunder (other than any obligations
or rights which according to this Agreement shall survive the termination of
this Agreement).
12.2 Notices12.2 Notices tc \l 2 "12.2 Notices". All notices, requests
and demands to or upon the respective parties hereto to be effective shall be
in writing (including by telecopy), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by
hand, or five days after being deposited in the mail, postage prepaid, or, in
the case of telecopy notice, when received, addressed as follows in the case
of the Company, the Subsidiary Borrowers and the Administrative Agent, and as
set forth in Schedule I in the case of the other parties hereto, or to such
other address as may be hereafter notified by the respective parties hereto
and any future holders of the Loans:
The Company:
Arrow Electronics, Inc.
00 Xxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative
Agent: The Chase Manhattan Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Chase Loan and Agency Services Group
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Subsidiary Borrowers:
c/o Arrow Electronics, Inc.
00 Xxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
;provided that any Notice of Borrowing, Notice of Continuation, Notice of
Conversion, Notice of Swing Line Outstandings, Notice of Swing Line
Refunding, Notice of Guarantee Ceiling Amount, Notice of Prepayment, or any
notice pursuant to subsections 2.4 or 2.5 shall not be effective until
received.
12.3 No Waiver; Cumulative Remedies12.3 No Waiver; Cumulative Remedies tc
\l 2 "12.3 No Waiver; Cumulative Remedies". No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder or under the other Credit
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.
12.4 Survival of Representations and Warranties12.4 Survival of
Representations and Warranties tc \l 2 "12.4 Survival of Representations
and Warranties" . All representations and warranties made hereunder, in the
other Credit Documents and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the other Credit Documents and
the making of the Loans hereunder.
12.5 Payment of Expenses and Taxes12.5 Payment of Expenses and Taxes tc \l
2 "12.5 Payment of Expenses and Taxes". The Company agrees (a) to pay or
reimburse the Administrative Agent and the Arranger for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Credit Documents and any other documents
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby,
including, without limitation, the fees and disbursements of counsel to the
Administrative Agent and the Arranger, (b) to pay or reimburse each Bank and
the Administrative Agent for all its reasonable costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement, the other Credit Documents and any such other documents upon the
occurrence of an Event of Default, including, without limitation, the fees
and disbursements of counsel to the Administrative Agent and to the several
Banks, and (c) to pay, indemnify, and hold each Bank, each Agent, the
Arranger and the Administrative Agent harmless from, any and all recording
and filing fees and any and all liabilities with respect to, or resulting
from any delay in paying, stamp, excise and other taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any
waiver or consent under or in respect of, this Agreement, the other Credit
Documents and any such other documents, and (d) to pay, indemnify, and hold
each Bank, each Agent, the Arranger and the Administrative Agent (and their
respective directors, officers, employees and agents) (collectively, the
"indemnified person") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Credit Documents and any such
other documents, including, without limitation, any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with
or liability under, any Environmental Law applicable to the operations of the
Company, any of its Subsidiaries or any of the Properties (it being
understood that costs and expenses incurred in connection with the
enforcement or preservation of rights under this Agreement and the other
Credit Documents shall be paid or reimbursed in accordance with clause (b)
above rather than this clause (d)) (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Company
shall have no obligation hereunder to any indemnified person with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of such indemnified person or (ii) legal proceedings commenced
against the Administrative Agent or any Bank by any security holder or
creditor thereof arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as such. Any payments
required to be made by the Company under this subsection 12.5 shall be made
within 30 days of the demand therefor. The agreements in this subsection
shall survive repayment of the Loans and all other amounts payable hereunder.
12.6 Successors and Assigns; Participations and Assignments12.6 Successors
and Assigns; Participations and Assignments tc \l 2 "12.6 Successors and
Assigns;
Participations and Assignments".
(a) This Agreement shall be binding upon and inure to the benefit of
the Company, the Subsidiary Borrowers, the Banks, the Administrative Agent,
all future holders of the Loans and their respective successors and assigns,
except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Bank.
(b) Any Bank may, in the ordinary course of its commercial lending
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in any
Loan owing to such Bank, any Commitment of such Bank or any other interest of
such Bank hereunder and under the other Credit Documents. In the event of
any such sale by a Bank of a participating interest to a Participant, such
Bank's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Bank shall remain solely responsible
for the performance thereof, such Bank shall remain the holder of any such
Loan for all purposes under this Agreement and the other Credit Documents,
and the Company, the Subsidiary Borrowers and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement and the other Credit
Documents. Each of the Company and the Subsidiary Borrowers agrees that if
amounts outstanding under this Agreement are due or unpaid, or shall have
been declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to
have agreed to share with the Banks the proceeds thereof as provided in
subsection 12.7(a) as fully as if it were a Bank hereunder. Each of the
Company and the Subsidiary Borrowers also agrees that each Participant shall
be entitled to the benefits of subsections 5.5, 5.6 or 5.8 with respect to
its participation in the Commitments and the Loans outstanding from time to
time as if it was a Bank; provided that, in the case of subsection 5.6, such
Participant shall have complied with the requirements of said subsection and
provided, further, that no Participant shall be entitled to receive any
greater amount pursuant to any such subsection than the transferor Bank would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Bank to such Participant had no such transfer
occurred. Each participating interest under this Agreement sold by a Bank to
a Participant after the Closing Date shall be under terms providing that such
Participant's rights to consent or withhold consent in respect of actions by
such selling Bank under this Agreement shall be limited to such actions that,
pursuant to subsection 12.1, require the consent of all the Banks. Each Bank
selling or granting a participation shall indemnify the Borrowers and the
Administrative Agent for any taxes and liabilities that they may sustain as a
result of such Bank's failure to withhold and pay any taxes applicable to
payments by such Bank to its participant in respect of such participation.
(c) Any Bank may, in the ordinary course of its commercial lending
business and in accordance with applicable law, at any time and from time to
time assign to any Bank or any affiliate thereof or, with the consent of the
Administrative Agent and the Company (which shall not be unreasonably
withheld and provided that the consent of the Company shall not be required
for such assignment if a Default or Event of Default pursuant to subsection
10(a) or 10(h) has occurred and is continuing at the time of such
assignment), to an additional bank or financial institutions (an "Assignee")
all or any part of its rights and obligations under this Agreement and the
Loans pursuant to an Assignment and Acceptance, executed by such Assignee,
such assigning Bank (and, in the case of an Assignee that is not then a Bank
or an affiliate thereof, by the Administrative Agent and the Company) and
delivered to the Administrative Agent for its acceptance and recording in the
Register. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and
Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder with a Commitment as set forth therein, and
(y) the assigning Bank thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's rights and obligations under
this Agreement, such assigning Bank shall cease to be a party hereto).
Notwithstanding anything herein to the contrary, no Assignee shall be
entitled to receive any greater amount pursuant to subsections 5.5, 5.6 or
5.8 than the transferor Bank would have been entitled to receive in respect
of the amount of the Commitment transferred by such transferor Bank to such
Assignee had no such transfer occurred, unless following the date of such
assignment, a change in any applicable Requirement of Law or any
interpretation thereof shall have occurred which entitles such Assignee to
claim additional amounts pursuant to such subsections.
(d) The Administrative Agent shall maintain at its address referred to
in subsection 12.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Banks and the Commitment of, and principal amount of the
Loans owing hereunder to, each Bank from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Company, the Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register as the owner of the Loan recorded therein
for all purposes of this Agreement. The Register shall be available for
inspection by the Company or any Bank at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Bank and an Assignee (and, in the case of an Assignee that is not
then a Bank or an affiliate thereof, by the Administrative Agent) together
with payment to the Administrative Agent of a registration and processing fee
of $3,500, the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto
record the information contained therein in the Register and give notice of
such acceptance and recordation to the Banks and the Company.
(f) The Company authorizes each Bank to disclose to any Participant or
Assignee (each, a "Transferee") and any prospective Transferee any and all
financial information in such Bank's possession concerning the Company and
its Affiliates which has been delivered to such Bank by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such Bank
by or on behalf of the Company in connection with such Bank's credit
evaluation of the Company and its Affiliates prior to becoming a party to
this Agreement so long as each such prospective Transferee shall execute a
confidentiality agreement containing provisions substantially similar to the
provisions contained in the next succeeding sentences of this paragraph (f).
The Administrative Agent and each Bank shall hold nonpublic information
obtained pursuant to the requirements of this Agreement other than
information (i) that is, or generally becomes, available to the public, (ii)
that was or becomes available to the Administrative Agent or any Bank on a
nonconfidential basis or (iii) that becomes available to the Administrative
Agent or any Bank from a Person or other source that is not, to the best
knowledge of the Administrative Agent or such Bank, as the case may be,
otherwise bound by a confidentiality obligation to the Company, in accordance
with its customary procedures for treatment of confidential information and
in accordance with safe and sound banking practices and in any event, may
make disclosure reasonably required by any Governmental Authority or
representative thereof pursuant to subpoena or other legal process or as
otherwise required by law, order or regulation. Unless specifically
prohibited by applicable law, regulation, rule or court order, the
Administrative Agent and each Bank shall notify the Company of any request by
any Governmental Authority or representative thereof (other than any such
request in connection with an examination of the financial condition of the
Administrative Agent or such Bank by such Governmental Authority) for
disclosure of such information by the Administrative Agent or such Bank so
that any of them may seek an appropriate protective order. Except as may be
required by an order of a court of competent jurisdiction and to the extent
set forth therein, neither the Administrative Agent nor any Bank shall be
obligated or required to return any materials furnished by the Company.
Nothing in this paragraph (f) shall prohibit the Administrative Agent or any
Bank from disclosing nonpublic information to its examiners, regulators and
professional advisors.
(g) Nothing herein shall prohibit any Bank from pledging or assigning
any Loan to any Federal Reserve Bank in accordance with applicable law or
require any Bank to obtain the consent of any Loan Party in order to pledge
or assign any Loan to any Federal Reserve Bank in accordance with applicable
law.
12.7 Adjustments; Set-off12.7 Adjustments; Set-off tc \l 2 "12.7
Adjustments; Set-off".
(a) If any Bank (a "benefitted Bank") shall at any time receive any
payment of all or part of its Loans then due and owing to it, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 10(h), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Bank, if any, in respect
of such other Bank's Loans then due and owing to it, or interest thereon,
such benefitted Bank shall purchase for cash from the other Banks a
participating interest in such portion of each such other Bank's Loans, or
shall provide such other Banks with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such benefitted Bank to
share the excess payment or benefits of such collateral or proceeds ratably
with each of the Banks; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted Bank,
such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. Each of the
Company and the Subsidiary Borrowers agrees that each Bank so purchasing a
portion of another Bank's Loan may exercise all rights of payment (including,
without limitation, rights of set-off) with respect to such portion as fully
as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by
law, each Bank shall have the right, without prior notice to the Company or
any Subsidiary Borrower, any such notice being expressly waived by the
Company and the Subsidiary Borrowers to the extent permitted by applicable
law, upon any amount becoming due and payable by any Borrower hereunder or
under this Agreement or the other Credit Documents (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by such Bank
or any branch or agency thereof to or for the credit or the account of such
Borrower, as the case may be. Each Bank agrees promptly to notify the
Company and the Administrative Agent after any such set-off and application
made by such Bank, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
12.8 Power of Attorney12.8 Power of Attorney tc \l 2 "12.8 Power of
Attorney". Each Subsidiary Borrower hereby grants to the Company an
irrevocable power of attorney to act as its attorney-in-fact with regard to
matters relating to this Agreement, the Applications and each other Credit
Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of
process in connection herewith or therewith. Each Subsidiary Borrower hereby
explicitly acknowledges that the Administrative Agent and each Bank has
executed and delivered this Agreement and each other Credit Document to which
it is a party, and has performed its obligations under this Agreement and
each other Credit Document to which it is a party, in reliance upon the
irrevocable grant of such power of attorney pursuant to this subsection 12.8.
The power of attorney granted by each Subsidiary Borrower hereunder is
coupled with an interest.
12.9 Judgment12.9 Judgment tc \l 2 "12.9 Judgment". (a) If for the
purpose of obtaining judgment in any court it is necessary to convert a sum
due hereunder in one currency into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that the rate
of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with
such other
currency on the Business Day preceding the day on which final judgment is
given.
(b) The obligation of any Borrower in respect of any sum due to any
Bank or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency (the "Judgment Currency") other than that in which
such sum is denominated in accordance with the applicable provisions of this
Agreement or the other Credit Documents (the "Agreement Currency"), be
discharged only to the extent that on the Business Day following receipt by
such Bank or the Administrative Agent (as the case may be) of any sum
adjudged to be so due in the Judgment Currency such Bank or the
Administrative Agent (as the case may be) may in accordance with normal
banking procedures 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 such Bank or the Administrative Agent (as the case
may be) in the Agreement Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Bank or
the Administrative Agent (as the case may be) against such loss, and if the
amount of the Agreement Currency so purchased exceeds the sum originally due
to any Bank or the Administrative Agent (as the case may be), such Bank or
the Administrative Agent (as the case may be) agrees to remit to such
Borrower such excess.
12.10 Counterparts12.10 Counterparts tc \l 2 "12.10 Counterparts". This
Agreement may be executed by one or more of the parties to this Agreement on
any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
12.11 Severability12.11 Severability tc \l 2 "12.11 Severability". Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
12.12 Integration12.12 Integration tc \l 2 "12.12 Integration". This
Agreement and the other Credit Documents represent the agreement of the
Company, the Subsidiary Borrowers, the Administrative Agent and the Banks
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Bank relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.
12.13 GOVERNING LAW.13 GOVERNING LAW tc \l 212 ".13 GOVERNING LAW". THIS
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
12.14 Submission To Jurisdiction; Waivers12.14 Submission To Jurisdiction;
Waivers tc \l 2 "12.14 Submission To Jurisdiction; Waivers".
(a) Each of the Company and the Subsidiary Borrowers hereby irrevocably
and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to which
it is a party, or for recognition and enforcement of any judgement in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State
of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
(iii) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Company at
its address set forth in subsection 12.2 or at such other address of which
the Administrative Agent shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential damages.
(b) Each Subsidiary Borrower hereby irrevocably appoints the Company as
its agent for service of process in any proceeding referred to in subsection
12.14(a) and agrees that service of process in any such proceeding may be
made by mailing or delivering a copy thereof to it care of the Company at its
address for notice set forth in subsection 12.2.
12.15 Acknowledgments12.15 Acknowledgments tc \l 2 "12.15
Acknowledgments". Each of the Company and the Subsidiary Borrowers hereby
acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) none of the Administrative Agent or any Bank has any fiduciary
relationship with or duty to the Company and the Subsidiary Borrowers arising
out of or in connection with this Agreement or any of the other Credit
Documents, and the relationship between the Administrative Agent and the
Banks, on one hand, and the Company and the Subsidiary Borrowers, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Credit Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Banks or among the Company and the Subsidiary Borrowers and the Banks.
12.16 WAIVERS OF JURY TRIAL.16 WAIVERS OF JURY TRIAL tc \x 000 ".00
XXXXXXX OF JURY TRIAL". THE COMPANY, THE SUBSIDIARY BORROWERS, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
ARROW ELECTRONICS, INC.
By:
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
ARROW ELECTRONICS GmbH
By:
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
ARROW ELECTRONICS (UK) LTD.
By:
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Bank
By:
Name:
Title:
BANK OF AMERICA, N.A., as Syndication Agent and as a Bank
By:
Name:
Title:
FLEET BANK, N.A., as Documentation Agent and as a Bank
By:
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Co-Agent and as a Bank
By:
Name:
Title:
BANK ONE, NA, as a Co-Agent and as a Bank
By:
Name:
Title:
BANQUE NATIONALE DE PARIS, NEW YORK BRANCH, as a Co-Agent and as a Bank
By:
Name:
Title:
By:
Name:
Title:
DEN DANSKE BANK AKTIESELSKAB, as a Co-Agent and as a Bank
By:
Name:
Title:
By:
Name:
Title:
HSBC BANK USA, as a Co-Agent and as a Bank
By:
Name:
Title:
MELLON BANK, N.A., as a Co-Agent and as a Bank
By:
Name:
Title:
BANCA COMMERCIALE ITALIANA, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
BANCA POPOLARE DI MILANO, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
BANK HAPOALIM B.M., NEW YORK BRANCHES
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
Name:
Title:
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH
By:
Name:
Title:
By:
Name:
Title:
CARIPLO-CASSA DI RISPARMIO DELLE PROVINCIE LOMBARDE S.P.A.
By:
Name:
Title:
By:
Name:
Title:
COMMERZBANK AKTIENGESELLSCHAFT, NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
CREDIT INDUSTRIEL ET COMMERCIAL
By:
Name:
Title:
By:
Name:
Title:
STANDARD CHARTERED BANK
By:
Name:
Title:
By:
Name:
Title:
SUNTRUST BANKS, INC.
By:
Name:
Title:
