1
CREDIT AGREEMENT
dated as of
February 13, 1997
among
THE XxXXXX-XXXX COMPANIES, INC.
The Lenders Parties Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$800,000,000 REVOLVING CREDIT AND COMPETITIVE ADVANCE
FACILITY
2
2
TABLE OF CONTENTS
Page
ARTICLE I
Definitions........................... 1
SECTION 1.01. Defined Terms............................................. 1
SECTION 1.02. Classification of Loans and Borrowings.................... 18
SECTION 1.03. Terms Generally........................................... 18
SECTION 1.04. Accounting Terms; GAAP.................................... 18
ARTICLE II
The Credits........................... 19
SECTION 2.01. Commitments............................................... 19
SECTION 2.02. Loans and Borrowings...................................... 19
SECTION 2.03. Requests for Revolving Borrowings......................... 20
SECTION 2.04. Competitive Bid Procedure................................. 21
SECTION 2.05. Swingline Loans........................................... 24
SECTION 2.06. Funding of Borrowings..................................... 25
SECTION 2.07. Interest Elections........................................ 26
SECTION 2.08. Termination and Reduction of
Commitments..................................................... 28
SECTION 2.09. Repayment of Loans; Evidence of Debt...................... 28
SECTION 2.10. Prepayment of Loans....................................... 29
SECTION 2.11. Fees...................................................... 30
SECTION 2.12. Interest.................................................. 31
SECTION 2.13. Alternate Rate of Interest................................ 32
SECTION 2.14. Increased Costs........................................... 33
SECTION 2.15. Break Funding Payments.................................... 34
SECTION 2.16. Taxes..................................................... 35
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs............................................. 36
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders......................................................... 38
SECTION 2.19. Proceeds.................................................. 39
ARTICLE III
Representations and Warranties............... 39
SECTION 3.01. Organization, Powers and Good Standing.................... 39
SECTION 3.02. Authorization of Borrowing, etc........................... 40
SECTION 3.03. Financial Condition....................................... 41
SECTION 3.04. No Adverse Material Change................................ 41
SECTION 3.05. Litigation................................................ 41
3
3
SECTION 3.06. Payment of Taxes.......................................... 42
SECTION 3.07. Governmental Regulation................................... 42
SECTION 3.08. Securities Activities..................................... 42
SECTION 3.09. ERISA..................................................... 42
ARTICLE IV
Conditions............................ 43
SECTION 4.01. Effective Date............................................ 43
SECTION 4.02. Each Credit Event......................................... 44
ARTICLE V
Affirmative Covenants...................... 44
SECTION 5.01. Financial Statements and Other Reports ................... 44
SECTION 5.02. Corporate Existence....................................... 47
SECTION 5.03. Payment of Taxes.......................................... 47
SECTION 5.04. Maintenance of Properties; Insurance...................... 47
SECTION 5.05. Compliance with Laws...................................... 48
SECTION 5.06. Notices of ERISA Event.................................... 48
ARTICLE VI
Negative Covenants........................ 48
SECTION 6.01. Fundamental Changes....................................... 48
SECTION 6.02. Liens..................................................... 49
SECTION 6.03. Financial Covenants....................................... 49
SECTION 6.04. Use of Proceeds........................................... 49
ARTICLE VII
Events of Default........................ 50
SECTION 7.01. Failure to Make Payments When Due......................... 50
SECTION 7.02. Default in Other Agreements............................... 50
SECTION 7.03. Breach of Certain Covenants............................... 51
SECTION 7.04. Breach of Warranty........................................ 51
SECTION 7.05. Other Defaults Under Agreement............................ 51
SECTION 7.06. Change In Control......................................... 51
SECTION 7.07. Involuntary Bankruptcy; Appointment of
Receiver, etc................................................... 52
4
4
SECTION 7.08. Voluntary Bankruptcy; Appointment of
Receiver, etc................................................... 52
SECTION 7.09. Judgments and Attachments................................. 53
SECTION 7.10. Involuntary Dissolution................................... 53
SECTION 7.11. ERISA Event............................................... 53
ARTICLE VIII
The Administrative Agent..................... 54
ARTICLE IX
Miscellaneous.......................... 57
SECTION 9.01. Notices................................................... 57
SECTION 9.02. Waivers; Amendments....................................... 57
SECTION 9.03. Expenses; Indemnity; Damage Waiver........................ 58
SECTION 9.04. Successors and Assigns.................................... 60
SECTION 9.05. Survival.................................................. 63
SECTION 9.06. Counterparts; Integration; Effectiveness.................. 63
SECTION 9.07. Severability.............................................. 64
SECTION 9.08. Right of Setoff........................................... 64
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process.............................................. 64
SECTION 9.10. WAIVER OF JURY TRIAL...................................... 65
SECTION 9.11. Headings.................................................. 65
SECTION 9.12. Confidentiality........................................... 66
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.01 -- Material Subsidiaries
Schedule 3.05 -- Material Litigation
Schedule 6.02 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of General Counsel of Borrower
Exhibit C -- Form of Opinion of Shearman & Sterling
5
CREDIT AGREEMENT dated as of February 13, 1997, among THE XxXXXX-XXXX
COMPANIES, INC., the LENDERS parties hereto, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum
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 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective
Rate shall be effective from and including the effective date of such change in
the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate,
respectively.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any
Eurodollar Revolving Loan, or with respect to the facility fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the
6
2
caption "Eurodollar Spread" or "Facility Fee Rate", as the case may be, based
upon the ratings by Xxxxx'x and Xxxx & Xxxxxx, respectively, applicable on such
date to the Index Debt:
Eurodollar Facility Fee
Index Debt Ratings: Spread Rate
Category 1: > AA-/Aa3 .120 .055
Category 2: > A/A2 .125 .065
Category 3: > A-/A3 .145 .080
Category 4: > BBB+/Baa1 .185 .090
Category 5: < BBB/Baa2 .230 .120
For purposes of the foregoing, (i) if either Xxxxx'x or Duff &
Xxxxxx shall not have in effect a rating for the Index Debt (other than by
reason of the circumstances referred to in the last sentence of this
definition), then such rating agency shall be deemed to have established a
rating in Category 5; (ii) if the ratings established or deemed to have been
established by Xxxxx'x and Duff & Xxxxxx for the Index Debt shall fall within
different Categories, the Applicable Rate shall be based on the higher of the
two ratings unless one of the two ratings is two or more Categories lower than
the other, in which case the Applicable Rate shall be determined by reference to
the Category next below that of the higher of the two ratings; and (iii) if the
ratings established or deemed to have been established by Xxxxx'x and Duff &
Xxxxxx for the Index Debt shall be changed (other than as a result of a change
in the rating system of Xxxxx'x or Duff & Xxxxxx), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Xxxxx'x or Duff & Xxxxxx shall change, or if either such rating agency
shall cease to be in the business of rating corporate debt obligations, the
Borrower and the Lenders shall negotiate in good faith to amend this definition
to reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"Assessment Rate" means, for any day, the annual assessment
rate in effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup "A" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
7
3
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary
CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means The XxXxxx-Xxxx Companies, Inc., a New York
corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) a Competitive Loan or group
of Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a
Revolving Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capitalized Lease" means any lease which is or should be
capitalized on the balance sheet of the lessee in accordance with GAAP existing
on the date hereof and Statement No. 13 of the Financial Accounting Standards
Board.
"Capitalized Lease Obligations" means the amount of the
liability reflecting the aggregate discounted amount of future payments under
all
8
4
Capitalized Leases calculated in accordance with GAAP existing on the date
hereof and Statement No. 13 of the Financial Accounting Standards Board.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or,
for purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Competitive Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" means, with respect to each Lender, the
commitment of such Lender to make Revolving Loans and to acquire participations
in Swingline Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Credit Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.08 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Commitment, as applicable.
"Competitive Bid" means an offer by a Lender to make a
Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive
Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making
such Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
"Compliance Certificate" has the meaning assigned to that term
in Section 5.01(b)(i) hereof.
9
5
"Consolidated Cash Flow" of the Borrower and the Subsidiaries
for any period (the "Determination Period") means the sum of (i) Consolidated
Net Income for the Determination Period, plus (ii) all amounts deducted in the
determination of such Consolidated Net Income in respect of (a) depreciation and
amortization (including without limitation amortization of assets held under
Capitalized Leases), (b) Consolidated Interest Expense, (c) provisions for taxes
based on or measured by income; provided, however, that (A) if during the
Determination Period the Borrower disposes of any asset, the sum of (x) the net
income (loss) produced by such asset, before extraordinary items, during the
portion of the Determination Period prior to the date on which such asset was
disposed of, plus (y) all amounts deducted in determining such net income (loss)
for such period in respect of depreciation and amortization (including without
limitation amortization of assets held under Capitalized Leases), interest on
Indebtedness, and provisions for taxes based on or measured by income shall be
excluded on a pro forma adjusted and consolidated basis in Consolidated Cash
Flow for the Determination Period (to the extent they would otherwise have been
included thereto), and (B) if during the Determination Period the Borrower makes
an investment in any asset, the sum of (x) the net income (loss) produced by
such asset, before extraordinary items, during the portion of the Determination
Period prior to the date on which such investment in such asset was made, plus
(y) all amounts deducted in determining such net income (loss) for such period
in respect of depreciation and amortization (including, without limitation,
amortization of assets held under Capitalized Leases), interest on Indebtedness,
and provisions for taxes based on or measured by income shall be included on a
pro forma adjusted and consolidated basis in Consolidated Cash Flow for the
Determination Period (to the extent they would have otherwise been excluded
therefrom); provided further, however, Consolidated Cash Flow for any
Determination Period shall be reduced by an amount equal to that amount
comprising consolidated capital expenditures associated with the book publishing
business during such Determination Period.
"Consolidated Interest Expense" means, for any period, the
interest expense of the Borrower and its Subsidiaries determined on a
consolidated basis in conformity with GAAP existing on the date hereof
including, without limitation, (i) the amortization of debt discount, (ii) the
amortization of all fees payable in connection with the incurrence of
Indebtedness to the extent included in interest expense and (iii) the portion of
any obligation with respect to a Capitalized Lease allocable to interest
expense.
"Consolidated Net Income" for any period means the net income
(or loss) of the Borrower and its Subsidiaries for such period before
extraordinary items, determined in accordance with GAAP existing on the date
hereof on a consolidated basis, after eliminating all intercompany items,
provided that there shall be excluded (i) income (or loss) of any Person (other
than a consolidated Subsidiary of such Person) in which any other Person (other
than such Person or any of its consolidated Subsidiaries) has a joint interest,
except to the extent of
10
6
the amount of dividends or other distributions actually paid to such Person or
any of its consolidated Subsidiaries by such other Person during such Period,
(ii) the income (or loss) of any Person accrued prior to the date it becomes a
consolidated Subsidiary of such Person or is merged into or consolidated with
such Person or any of its consolidated Subsidiaries, (iii) the income of any
consolidated Subsidiary of such Person to the extent that the declaration or
payment of dividends or similar distributions by that consolidated Subsidiary of
the income is not at the time permitted, (iv) any after-tax gains (but not
pre-tax losses) attributable to sales of assets out of the ordinary course of
business and any after-tax gains on pension reversions received by such Person
and its consolidated Subsidiaries and (v) any income (or loss) attributable to
any lease of property (whether real, personal or mixed) under which the Borrower
or any of its Subsidiaries is the lessor; provided, however, there shall be
excluded from any calculation pursuant to any of clauses (ii)-(iv) any income or
loss attributable to assets purchased or sold, as the case may be, having an
individual or aggregate (for any consecutive twelve month period) fair market
value of less than $50,000,000.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Determination Date" means, as used in connection with any
certificate, report or calculation delivered hereunder, the date (which shall be
specified in such certificate, report or calculation) as of which the
determinations set forth in such certificate, report or calculation are made.
"dollars" or "$" refers to lawful money of the United States
of America.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Environmental Laws" means federal, state, local and foreign
laws or regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder relating to pollution or protection
of the environment, including, without limitation, laws relating to emissions,
discharges, releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into the
11
7
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or industrial,
toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan
pursuant to Section 4041(c) or 4042 of ERISA; (f) the incurrence by the Borrower
or any of its ERISA Affiliates of any Withdrawal Liability or any liability with
respect to the withdrawal of such Person from any Plan; or (g) the receipt by
the Borrower or any ERISA Affiliate of any notice from any Multiemployer Plan to
which the Borrower or any ERISA Affiliate has an obligation to contribute
setting forth a determination that the Borrower or any ERISA Affiliate has
incurred liability as a result of the insolvency or reorganization of such
Multiemployer Plan, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Exchange Act" means the Securities Exchange Act of 1934, as
from time to time amended, and any successor statutes.
12
8
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or any state or local government or taxing authority in the United
States of America, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.18(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement or is attributable to
such Foreign Lender's failure or inability to comply with Section 2.16(e),
except to the extent that such Foreign Lender's assignor (if any) was entitled,
at the time of assignment, to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.16(a).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Fiscal Quarter" means a quarterly period beginning on the
first day of January, April, July and October in each Fiscal Year.
"Fiscal Year" means an annual period beginning on January 1 in
each year and ending on December 31 of such year.
"Fixed Rate" means, with respect to any Competitive Loan
(other than a Eurodollar Competitive Loan), the fixed rate of interest per annum
specified by the Lender making such Competitive Loan in its related Competitive
Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at
a Fixed Rate.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles in the
United States of America in effect from time to time except as specifically
noted.
13
9
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" means, with respect to any Person, (i) any
guarantee, reimbursement agreement or similar contingent obligation made by such
Person in respect of any Indebtedness of any other Person, (ii) any other
arrangement whereby credit is extended to any other Person on the basis of any
promise or undertaking of such Person, (a) to pay the Indebtedness of such other
Person, (b) to purchase an obligation owed by such other Person, (c) to purchase
or lease assets under circumstances that would enable such other Person to
discharge such credit of its obligations or (d) to maintain the capital, working
capital, solvency or general financial condition of such other Person, in each
case whether or not such arrangement is disclosed in the balance sheet of such
other Person or is referred to in a footnote thereto, and (iii) any liability,
(other than Indebtedness which is recourse to a Subsidiary of the Borrower, the
only asset of which is its interest in the partnership of which the Subsidiary
is the general partner, and which Indebtedness is non-recourse to the Borrower)
as a general partner of a partnership in respect of Indebtedness of such
partnership; provided, however, that the term Guarantee shall not include (1)
endorsements for collection or deposit in the ordinary course of business or (2)
obligations of the Borrower and its Subsidiaries which would constitute
Guarantees solely by virtue of the continuing liability of any such Person which
has sold assets subject to liabilities for liabilities which were assumed by
another Person acquiring the assets which were sold, unless such liability is
required to be carried on the balance sheet of the Borrower and its Subsidiaries
in accordance with GAAP. The amount of any Guarantee and the amount of
Indebtedness resulting from such Guarantee shall be the amount which would have
to be carried on the balance sheet of the guarantor in respect of such Guarantee
in accordance with GAAP.
"Indebtedness" means, with respect to any Person, all
obligations, for the repayment of borrowed money, which in accordance with GAAP
in effect on the date hereof should be classified upon such Person's balance
sheet as liabilities, but in any event including (i) liabilities for the
repayment of borrowed money to the extent secured by any Lien existing on
property owned or acquired by such Person or a Subsidiary thereof, whether or
not the liability secured thereby shall have been assumed by such Person and
(ii) all Guarantees of such Person.
"Indebtedness to Cash Flow Ratio" means the ratio of (i)
Indebtedness of the Borrower at the Determination Date to (ii) the Consolidated
Cash Flow for the four consecutive Fiscal Quarters ending immediately prior to
the Determination Date.
14
10
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Independent Public Accountant" means any of the firms of
public accountants (or their survivors in any merger therewith) currently
referred to as the "Big Six" or any other firm of public accountants of
nationally recognized stature which is (i) independent (as such term is defined
in the rules and regulations promulgated by the Securities and Exchange
Commission under the Exchange Act) from the Person the financial statements of
which are being reported on, (ii) selected by such Person and (iii) reasonably
acceptable to the Required Lenders.
"Index Debt" means senior, unsecured, long-term indebtedness
for borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan
(other than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period,
(c) with respect to any Fixed Rate Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a
Fixed Rate Borrowing with an Interest Period of more than 90 days' duration
(unless otherwise specified in the applicable Competitive Bid Request), each day
prior to the last day of such Interest Period that occurs at intervals of 90
days' duration after the first day of such Interest Period, and any other dates
that are specified in the applicable Competitive Bid Request as Interest Payment
Dates with respect to such Borrowing and (d) with respect to any Swingline Loan,
the day that such Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each Lender, nine or twelve months)
thereafter, as the Borrower may elect, (b) with respect to any Fixed Rate
Borrowing, the period (which shall not be less than 7 days or more than 360
days) commencing on the date of such Borrowing and ending on the date specified
in the applicable Competitive Bid Request; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would
15
11
fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and,
in the case of a Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof) or any sale of receivables with recourse against the seller.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing
interest at a rate based on the LIBO Rate, the marginal rate of interest, if
any, to be added to or subtracted from the LIBO Rate to determine the rate of
interest
16
12
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board as in effect from time to time.
"Material Adverse Effect" means a material adverse effect on
the business, operations, properties, assets or financial condition of the
Borrower and its Subsidiaries, taken as a whole.
"Material Subsidiary" means each Subsidiary that is a
"significant subsidiary" as defined in Regulation Section 230.405 promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date
hereof.
"Maturity Date" means February 13, 2002.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Notes" means the Revolving Notes and the Swingline Note.
"Officer's Certificate" means, as applied to any corporation,
a certificate executed on behalf of such corporation by its Chairman of the
Board (if an officer), its President, its Chief Financial Officer or its
Treasurer.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Permitted Liens" means:
(a) Liens for taxes, assessments or governmental charges or
levies (including any Lien imposed by ERISA arising out of an ERISA Event),
17
13
either not yet delinquent or so long as the amount, applicability or validity of
the same is being contested in good faith provided that any proceedings
commenced for the foreclosure on such Liens have been duly suspended and
adequate reserves, if any, have been established therefor in accordance with
GAAP;
(b) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law incurred in
the ordinary course of business for sums not delinquent for a period of more
than 45 days or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP, shall have been
made therefor;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, or to secure the performance of tenders,
statutory obligations, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);
(d) Any attachment or judgment Lien unless the attachment or
judgment it secures shall remain undischarged and execution thereof shall remain
unstayed pending appeal for a period of 60 days;
(e) Easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(f) Any interest or title of a lessor under any lease; and
(g) Liens arising from equipment leases entered into in the
ordinary course of business.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Register" has the meaning set forth in Section 9.04.
18
14
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having
Revolving Credit Exposures and unused Commitments representing at least 51% of
the sum of the total Revolving Credit Exposures and unused Commitments at such
time; provided that, for purposes of declaring the Loans to be due and payable
pursuant to Article VII, and for all purposes after the Loans become due and
payable pursuant to Article VII or the Commitments expire or terminate, the
outstanding Competitive Loans of the Lenders shall be included in their
respective Revolving Credit Exposures in determining the Required Lenders.
"Requirement of Law" means, as to any Person, any law, treaty,
rule or regulation or determination of any 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.
"Revolving Credit Exposure" means, with respect to any Lender
at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Revolving Note" means a promissory note executed and
delivered pursuant to Section 2.09(e) evidencing the Revolving Loans made by a
Lender.
"Securities Act" means the Securities Act of 1933, as from
time to time amended, and any successor statutes.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board (a) with respect to the Base CD Rate, to
which the Administrative Agent is subject for new negotiable nonpersonal time
deposits in dollars of over $100,000 with maturities approximately equal to (i)
three months and (b) with respect to the LIBO Rate, to which the Lender is
subject for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" means, with respect to any Person, a corporation
of which shares of stock having ordinary voting power (other than stock having
19
15
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 are at the time
owned, directly or indirectly through one or more intermediaries, or both, by
such Person.
"Swingline Commitment" means the commitment of the Swingline
Lender made in Section 2.05(a).
"Swingline Exposure" means, at any time, the aggregate
principal amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Lender at any time shall be its Applicable Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its
capacity as lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
"Swingline Note" means a promissory note executed and
delivered pursuant to Section 2.09(e) evidencing the Swingline Loans made by the
Swingline Lender.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Three-Month Secondary CD Rate" means, 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 is not 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 is not 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 is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of deposit
dealers of recognized standing selected by it.
"Transactions" means the execution, delivery and performance
by the Borrower of this Agreement, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such
20
16
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate
or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed
Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class
and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also may be
classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type
(e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar
Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP; provided that, if the Borrower notifies
the Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of
whether any such notice is given before or after such change in GAAP or in the
application
21
17
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions
set forth herein, each Lender agrees to make Revolving Loans to the Borrower
from time to time during the Availability Period in an aggregate principal
amount that will not result in (a) such Lender's Revolving Credit Exposure
exceeding such Lender's Commitment or (b) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding Competitive Loans
exceeding the total Commitments. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan
shall be made as part of a Borrowing consisting of Revolving Loans made by the
Lenders ratably in accordance with their respective Commitments. Each
Competitive Loan shall be made in accordance with the procedures set forth in
Section 2.04. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments and Competitive Bids of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith, and (ii) each Competitive Borrowing shall be
comprised entirely of Eurodollar Loans or Fixed Rate Loans as the Borrower may
request in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement and shall not cause the
Borrower to incur as of the date of the exercise of such option any greater
liability than it shall then have under Sections 2.14 and 2.16.
(c) At the commencement of each Interest Period for any
Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $5,000,000 and not less than $10,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall
22
18
be in an aggregate amount that is an integral multiple of $5,000,000 and not
less than $10,000,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments. Each Competitive Borrowing shall be in an aggregate amount that is
an integral multiple of $1,000,000 and not less than $5,000,000. Each Swingline
Loan shall be in an amount that is an integral multiple of $1,000,000 and shall
be in an aggregate minimum amount of $1,000,000. Borrowings of more than one
Type and Class may be outstanding at the same time; provided that there shall
not at any time be more than a total of 10 Eurodollar Revolving Borrowings
outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
23
19
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the
terms and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time shall not exceed
the total Commitments. To request Competitive Bids, the Borrower shall notify
the Administrative Agent of such request by telephone, in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, four
Business Days before the date of the proposed Borrowing and, in the case of a
Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) 3 Competitive Bid Requests on the
same day, but a Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request, unless any and all
such previous Competitive Bid Requests shall have been withdrawn or all
Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Competitive Bid Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Competitive Bid Request shall specify the following
information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing
or a Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing,
which shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of Section
2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
24
20
(b) Each Lender may (but shall not have any obligation to)
make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, in the case of a Eurodollar Competitive Borrowing, not later than 9:30
a.m., New York City time, three Business Days before the proposed date of such
Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than
9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form
approved by the Administrative Agent may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the applicable Lender as
promptly as practicable. Each Competitive Bid shall specify (i) the principal
amount (which shall be a minimum of $5,000,000 and an integral multiple of
$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested by the Borrower) of the Competitive Loan or Loans that the
Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the
Lender is prepared to make such Loan or Loans (expressed as a percentage rate
per annum in the form of a decimal to no more than four decimal places) and
(iii) the Interest Period applicable to each such Loan and the last day thereof.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Lender that shall have
made such Competitive Bid.
(d) Subject only to the provisions of this paragraph, the
Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing,
not later than 10:30 a.m., New York City time, three Business Days before the
date of the proposed Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 10:30 a.m., New York City time, on the proposed date
of the Competitive Borrowing; provided that (i) the failure of the Borrower to
give such notice shall be deemed to be a rejection of each Competitive Bid, (ii)
the Borrower shall not accept a Competitive Bid made at a particular Competitive
Bid Rate for a particular interest period if the Borrower rejects a Competitive
Bid made at a lower Competitive Bid Rate for the same interest period, (iii) the
aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (iv) to the extent necessary to comply with
clause (iii) above, the Borrower may accept Competitive Bids at the same
Competitive Bid Rate in part, which acceptance, in the case of multiple
Competitive Bids at such Competitive Bid Rate, shall be made pro rata in
accordance with the amount of each such Competitive Bid, and (v) except
25
21
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in a minimum principal amount
of $5,000,000 and an integral multiple of $1,000,000; provided further that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Lender by telecopy whether or not its Competitive Bid has been accepted
(and, if so, the amount and Competitive Bid Rate so accepted), and each
successful bidder will thereupon become bound, subject to the terms and
conditions hereof, to make the Competitive Loan in respect of which its
Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Lender, it shall submit such Competitive
Bid directly to the Borrower at least one quarter of an hour earlier than the
time by which the other Lenders are required to submit their Competitive Bids to
the Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Swingline Loans. (a) Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$75,000,000 or (ii) the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans exceeding the total
Commitments; provided that the Swingline Lender shall not be required to make a
Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
26
22
deposit account of the Borrower with the Swingline Lender by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent will
give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders),
and the Administrative Agent shall promptly pay to the Swingline Lender the
amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof. Notwithstanding the
foregoing, a Lender shall not have any obligation to acquire a participation in
a Swingline Loan pursuant to this paragraph if an Event of Default shall have
occurred and be continuing at the time such Swingline Loan was made and such
Lender shall have notified the Swingline Lender in writing, at least one
Business Day prior to the time such Swingline Loan was made, that such Event of
Default has occurred and that such Lender will not acquire participations in
Swingline Loans made while such Event of Default is continuing.
27
23
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.05. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing Request
or Competitive Bid Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the
case of the Borrower, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings or Swingline Borrowings, which may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Revolving Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic Interest
28
24
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is
repaid as provided herein, at the end of such Interest Period such Borrowing
shall be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Revolving Borrowing may be converted to or continued as a Eurodollar Borrowing
and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted
to an ABR Borrowing at the end of the Interest Period applicable thereto.
29
25
SECTION 2.08. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Commitments shall terminate on the Maturity
Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in minimum aggregate amounts of $10,000,000 (unless the
Swingline Commitment and/or the total Commitment, as the case may be, at such
time is less than $10,000,000, in which case, in an amount equal to the
Swingline Commitment and/or the total Commitment at such time) and, if such
reduction is greater than $5,000,000, in integral multiples of $5,000,000 in
excess of such amount and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date, (ii) to the Administrative Agent for the
account of each Lender with an outstanding Competitive Loan the then unpaid
principal amount of such Competitive Loan on the last day of the Interest Period
applicable to such Loan and (iii) to the Administrative Agent the then unpaid
principal amount of each Swingline Loan on the Maturity Date; provided that on
each date that a Revolving Borrowing or Competitive Borrowing is made, the
Borrower shall repay all Swingline Loans then outstanding.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the
30
26
amounts of principal and interest payable and paid to such Lender from time to
time hereunder.
(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement. If there is a
conflict in entries made in the accounts maintained pursuant to paragraph (b) or
(c) of this Section, the entries made in the accounts maintained by the
Administrative Agent shall be such prima facie evidence of the existence and
amounts of the obligations.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent.
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing in whole or
in part, subject to prior notice in accordance with paragraph (b) of this
Section; provided that the Borrower shall not have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent (and,
in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment or (iii) in the
case of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given
in connection with a conditional notice of termination of the
31
27
Commitments as contemplated by Section 2.08, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section
2.08. Promptly following receipt of any such notice relating to a Revolving
Borrowing, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Revolving Borrowing shall be in an
amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees accruing after the date on which the Commitments
terminate shall be payable on demand. All facility fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees to the Lenders. Fees paid shall not be refundable
under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each
ABR Borrowing (including each Swingline Loan) shall bear interest at a rate per
annum equal to the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to (i) in the case of a Eurodollar Revolving
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Rate, or (ii) in the case of a Eurodollar Competitive Loan, the
LIBO
32
28
Rate for the Interest Period in effect for such Borrowing plus (or minus, as
applicable) the Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at a rate per
annum equal to the Fixed Rate applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of
any Loan, 2% plus the rate otherwise applicable to such Loan as provided above
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR
Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment, (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion and (iv) all accrued interest shall be payable upon
termination of the Commitments.
(f) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate or
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the LIBO Rate, as applicable, for such Interest
Period; or
(b) the Administrative Agent is advised by the Required
Lenders (or, in the case of a Eurodollar Competitive Loan, the Lender that is
required to make such Loan) that the LIBO Rate, as applicable, for such Interest
Period will
33
29
not adequately and fairly reflect the cost to such Lenders (or Lender) of making
or maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period; then the Administrative Agent shall give notice thereof to the
Borrower and the Lenders by telephone or telecopy as promptly as practicable
thereafter and, until the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar
Borrowing shall be ineffective, (ii) if any Borrowing Request requests a
Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing
and (iii) any request by the Borrower for a Eurodollar Competitive Borrowing
shall be ineffective; provided that (A) if the circumstances giving rise to such
notice do not affect all the Lenders, then requests by the Borrower for
Eurodollar Competitive Borrowings may be made to Lenders that are not affected
thereby and (B) if the circumstances giving rise to such notice affect only one
Type of Borrowings, then the other Type of Borrowings shall be permitted.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement as is covered by Section 2.14 (c)); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans or Fixed
Rate Loans made by such Lender therein; and the result of any of the
foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan or Fixed Rate Loan (or of maintaining
its obligation to make any such Loan) (excluding any such increased
costs from Taxes or Excluded Taxes) or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will upon notice by such
Lender pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction
suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will upon notice by such Lender
34
30
compensate such Lender or such Lender's holding company for any such reduction
suffered to the extent allocable to this Agreement.
(c) The Borrower shall pay to each Lender at any time when
such Lender is required to maintain reserves for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board),
additional interest on the unpaid principal amount of each Eurodollar Loan of
such Lender from the date of such requirement until such principal amount is
paid in full or such requirement ceases at the rate per annum equal to (i) the
LIBO rate for the relevant Interest Period multiplied by (ii) the Statutory
Reserve Rate for such Lender minus (iii) such LIBO Rate, payable upon notice by
such Lender on each Interest Payment Date for such Eurodollar Loan.
(d) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a), (b) or (c) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
(e) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than six months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
(f) Notwithstanding the foregoing provisions of this Section,
a Lender shall not be entitled to compensation pursuant to this Section in
respect of any Competitive Loan if the Change in Law that would otherwise
entitle it to such compensation shall have been publicly announced prior to
submission of the Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Eurodollar Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice is
permitted to be revocable under Section 2.10(b) and is revoked in accordance
herewith),
35
31
(d) the failure to borrow any Competitive Loan after accepting the Competitive
Bid to make such Loan, or (e) the assignment of any Eurodollar Loan or Fixed
Rate Loan other than on the last day of the Interest Period applicable thereto
as a result of a request by the Borrower pursuant to Section 2.18, then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event (excluding any loss of anticipated profits).
In the case of a Eurodollar Loan, the loss to any Lender attributable to any
such event shall be deemed to include an amount determined by such Lender to be
equal to the excess, if any, of (i) the amount of interest that such Lender
would pay for a deposit equal to the principal amount of such Loan for the
period from the date of such payment, conversion, failure or assignment to the
last day of the then current Interest Period for such Loan (or, in the case of a
failure to borrow, convert or continue, the duration of the Interest Period that
would have resulted from such borrowing, conversion or continuation) if the
interest rate payable on such deposit were equal to the LIBO Rate for such
Interest Period, over (ii) the amount of interest that such Lender would earn on
such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such
Lender (or an affiliate of such Lender) for dollar deposits from other banks in
the eurodollar market at the commencement of such period. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to
receive pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or an account
of any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) paid by the Administrative Agent, such Lender and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto.
36
32
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, or fees, or under Section 2.14, 2.15
or 2.16, or otherwise) prior to 2:00 P.M., New York City time, on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx, except payments to be made directly to the Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, to
pay interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, to pay principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal then due to
such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
37
33
interest on any of its Revolving Loans or Swingline Loans resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans Swingline Loans and accrued interest thereon than the proportion
received by any other Lender, then the Lender receiving such greater proportion
shall purchase (for cash at face value) participations in the Revolving Loans
and Swingline Loans of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with
the aggregate amount of principal of and accrued interest on their respective
Revolving Loans and Swingline Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the Federal Funds
Effective Rate.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.05(c), 2.06(b) or 2.17(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.14, or if the Borrower
38
34
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous in any material respect to
such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement
(other than any outstanding Competitive Loans held by it) to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Commitment is being
assigned, the Swingline Lender), which consent shall not unreasonably be
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans (other than Competitive Loans) and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to
it hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
SECTION 2.19. Proceeds. The proceeds of the Loans made by the
Lenders to the Borrower shall be used for acquisitions, repurchases of capital
stock of the Borrower, the funding of dividends payable to shareholders of the
Borrower and for general corporate purposes of the Borrower.
ARTICLE III
39
35
Representations and Warranties
The Borrower represents and warrants to the Lenders that the
following statements are true, correct and complete:
SECTION 3.01. Organization, Powers and Good Standing. (a) The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Borrower has all
requisite corporate power and authority (i) to own and operate its properties
and to carry on its business as now conducted and proposed to be conducted,
except where the lack of corporate power and authority would not have a Material
Adverse Effect and (ii) to enter into this Agreement and to carry out the
transactions contemplated hereby, and to issue the Notes.
(b) The Borrower is in good standing wherever necessary to
carry on its present business and operations, except in jurisdictions in which
the failure to be in good standing would not have a Material Adverse Effect.
(c) All of the Material Subsidiaries of the Borrower, as of
the Effective Date, are identified in Schedule 3.01 annexed hereto. Each
Material Subsidiary of the Borrower is validly existing and in good standing
under the laws of its respective jurisdiction of incorporation and has all
requisite corporate power and authority to own and operate its properties and to
carry on its business as now conducted except where failure to be in good
standing or a lack of corporate power and authority would not have a Material
Adverse Effect.
SECTION 3.02. Authorization of Borrowing, etc. (a) The
execution, delivery and performance of this Agreement, and the issuance,
delivery and payment of the Notes and the borrowing of the Loans have been duly
authorized by all necessary corporate action by the Borrower.
(b) The execution, delivery and performance by the Borrower of
this Agreement and the issuance, delivery and performance of the Notes by the
Borrower, and the borrowing of the Loans do not and will not (i) violate any
provision of law applicable to the Borrower or any of its Material Subsidiaries,
(ii) violate the Certificate of Incorporation or Bylaws of the Borrower or any
of its Material Subsidiaries, (iii) violate any order, judgment or decree of any
court or other agency of government binding on the Borrower or any of its
Material Subsidiaries, conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any contractual obligation
of the Borrower or any of its Material Subsidiaries, result in or require the
creation or imposition of any Lien upon any of the material properties or assets
of the Borrower or any of its Material Subsidiaries or require any approval of
stockholders or any approval or consent of any Person under any contractual
obligation of the Borrower or any of its Material Subsidiaries other than such
approvals and consents which have been or will be obtained on or before the
Effective Date;
40
36
except for any violation, conflict, default, breach, lien or lack of approval
the existence of which would not have a Material Adverse Effect.
(c) The execution, delivery and performance by the Borrower of
this Agreement and the issuance, delivery and performance by the Borrower of the
Notes will not require on the part of the Borrower any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body other than any
such registration, consent, approval, notice or other action which has been duly
made, given or taken.
(d) This Agreement is and each of the Notes when executed and
delivered will be a legally valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its respective terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
SECTION 3.03. Financial Condition. The Borrower has delivered
to the Administrative Agent the following materials: (i) audited consolidated
financial statements of the Borrower and its Subsidiaries for the year ended
December 31, 1995 and (ii) unaudited consolidated financial statements of the
Borrower and its Subsidiaries for the Fiscal Quarters ended March 31, 1996, June
30, 1996 and September 30, 1996 (collectively, the "Financial Statements"). All
such Financial Statements were prepared in accordance with GAAP except for the
preparation of footnote disclosures for the unaudited statements. All such
Financial Statements fairly present the consolidated financial position of the
Borrower and its Subsidiaries as at the respective dates thereof and the
consolidated statements of income and changes in financial position of the
Borrower and its Subsidiaries for each of the periods covered thereby, subject,
in the case of any unaudited interim financial statements, to changes resulting
from normal year-end adjustments.
SECTION 3.04. No Adverse Material Change. Since December 31,
1995, there has been no change in the business, operations, properties, assets
or financial condition of the Borrower or any of its Subsidiaries, which has
been, either in any case or in the aggregate, materially adverse to the Borrower
and its Subsidiaries taken as a whole.
SECTION 3.05. Litigation. Except as disclosed in the Financial
Statements delivered to the Lenders pursuant to Section 3.03 hereof or in
Schedule 3.05 to this Agreement, there is no action, suit, proceeding,
governmental investigation (including, without limitation, any of the foregoing
relating to laws, rules and regulations relating to the protection of the
environment, health and safety) of which the Borrower has knowledge or
arbitration (whether or not purportedly on behalf of the Borrower or any of its
41
37
Subsidiaries) at law or in equity or before or by any Governmental Authority,
domestic or foreign, pending or, to the knowledge of the Borrower, threatened
against the Borrower or any of its Subsidiaries or affecting any property of the
Borrower or any of its Subsidiaries which (i) challenges the validity of this
Agreement or any Note or (ii) could reasonably be expected to have a Material
Adverse Effect.
SECTION 3.06. Payment of Taxes. Except to the extent permitted
by Section 5.03 hereof, the Borrower has paid or caused to be paid all taxes,
assessments, fees and other governmental charges upon the Borrower and each of
its Subsidiaries and upon their respective properties, assets, income and
franchises, except for any taxes the failure of which to pay would not have a
Material Adverse Effect or which are not yet due and payable or which are being
contested in good faith. The Borrower does not know of any proposed tax
assessment against the Borrower or such Subsidiary that would have a Material
Adverse Effect, which is not being contested in good faith by the Borrower or
such Subsidiary; provided that such reserves or other appropriate provisions, if
any, as shall be required in conformity with GAAP shall have been made or
provided therefor.
SECTION 3.07. Governmental Regulation. (a) The Borrower is not
subject to regulation under the Public Utility Holding Company Act of 1935 or to
any federal or state statute or regulation limiting its ability to incur
Indebtedness for money borrowed as contemplated by this Agreement or by the
Notes.
(b) The Borrower is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
SECTION 3.08. Securities Activities. The Borrower is not
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
SECTION 3.09. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. As of the date hereof, the
present value of all accumulated benefit obligations under each Plan (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $5,000,000 the fair market value of
the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting
42
38
such amounts, exceed by more than $5,000,000 the fair market value of the assets
of all such underfunded Plans.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart of
this Agreement.
(b) The Administrative Agent shall have received (i) a
favorable written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Xxxxxxx X. Xxxxxx, General Counsel to the
Borrower, substantially in the form of Exhibit B, and covering such other
matters relating to the Borrower, this Agreement or the Transactions as the
Required Lenders shall reasonably request and (ii) a favorable written opinion
(addressed to the Administrative Agent and the Lenders and dated the Effective
Date) of Shearman & Sterling, counsel to the Borrower, substantially in the Form
of Exhibit C, and covering the enforceability of this Agreement. The Borrower
hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel may
reasonably request relating to the organization, existence and good standing of
the Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrower, this Agreement or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a Vice
President or a financial officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all reasonable and actual
43
39
out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
February 13, 1997 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing is subject to the satisfaction
of the following conditions:
(a) The representations and warranties of the Borrower set
forth in this Agreement (other than in Section 3.04 and Section 3.05(ii)) shall
be true and correct in all material respects on and as of the date of such
Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Reports. The
Borrower and each of its Subsidiaries will maintain a system of accounting
established and administered in accordance with sound business practices to
permit preparation of consolidated financial statements in conformity with GAAP
and the Borrower will deliver to the Administrative Agent (which will deliver
copies thereof to the Lenders) (except to the extent otherwise expressly
provided below in subsection 5.01(b)(ii)):
(a)(i) as soon as practicable and in any event within 45 days
after the end of each of the first three Fiscal Quarters of each Fiscal
Year ending after the Effective Date the consolidated balance sheet of
the
44
40
Borrower and its consolidated Subsidiaries as at the end of such
period, and the related consolidated statements of income and
shareholders' equity and cash flows of the Borrower and its
consolidated Subsidiaries in each case certified by the chief financial
officer or controller of the Borrower that they fairly present the
financial condition of the Borrower and its consolidated subsidiaries
as at the dates indicated and the results of their operations and
changes in their financial position, subject to changes resulting from
audit and normal year-end adjustments, based on the Borrower's normal
accounting procedures applied on a consistent basis (except as noted
therein);
(ii) as soon as practicable and in any event within 90 days
after the end of each Fiscal Year the consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such year
and the related consolidated statements of income and shareholders'
equity and cash flows of the Borrower and its consolidated Subsidiaries
for such Fiscal Year, accompanied by a report thereon of an Independent
Public Accountant which report shall be unqualified as to (w) the
accuracy of all numbers or amounts set forth in such financial
statements, (x) the inclusion or reflection in such financial
statements of all amounts pertaining to contingencies required to be
included or reflected therein in accordance with GAAP, (y) going
concern and (z) scope of audit and shall state that such consolidated
financial statements present fairly the financial position of the
Borrower and its consolidated subsidiaries as at the dates indicated
and the results of their operations and changes in their financial
position for the periods indicated in conformity with GAAP applied on a
basis consistent with prior years (except as noted in such report and
approved by such Independent Public Accountant) and that the
examination by such Independent Public Accountant in connection with
such consolidated financial statements has been made in accordance with
generally accepted auditing standards;
The Borrower will be deemed to have complied with the
requirements of Section 5.01(a)(i) hereof if within 45 days after the end of
each Fiscal Quarter (other than the final Fiscal Quarter) of each of its Fiscal
Years, a copy of the Borrower's Form 10-Q as filed with the Securities and
Exchange Commission with respect to such Fiscal Quarter is furnished to the
Administrative Agent, and the Borrower will be deemed to have complied with the
requirements of Section 5.01(a)(ii) hereof if within 90 days after the end of
each of its Fiscal Years, a copy of the Borrower's Annual Report on Form 10-K as
filed with the Securities and Exchange Commission with respect to such Fiscal
Year is furnished to the Administrative Agent.
(b)(i) together with each delivery of financial statements of
the Borrower and its consolidated subsidiaries pursuant to subdivisions
(a)(i) and (a)(ii) above, (x) an Officer's Certificate of the Borrower
stating that
45
41
the signer has reviewed the terms of this Agreement and has made, or
caused to be made under such signer's supervision, a review in
reasonable detail of the transactions and condition of the Borrower and
its consolidated subsidiaries during the accounting period covered by
such financial statements and that such review has not disclosed the
existence during or at the end of such accounting period, and that the
signer does not have knowledge of the existence as at the date of the
Officers' Certificate, of any condition or event which constitutes an
Event of Default or Default, or, if any such condition or event existed
or exists, specifying the nature and period of existence thereof and
what action the Borrower has taken, is taking and proposes to take with
respect thereto; and (y) an Officer's Certificate demonstrating in
reasonable detail compliance with the restrictions contained in Section
6.03 hereof (a "Compliance Certificate") and, in addition, a written
statement of the chief accounting officer, chief financial officer, any
vice president or the treasurer or any assistant treasurer of the
Borrower describing in reasonable detail the differences between the
financial information contained in such financial statements and the
information contained in the Officer's Certificate relating to
compliance with Section 6.03 hereof;
(ii) promptly upon their becoming available but only to the
extent requested by the Administrative Agent, copies of all publicly
available financial statements, reports, notices and proxy statements
sent by the Borrower to its security holders, of all regular and
periodic reports and all registration statements and prospectuses, if
any, filed by the Borrower with any securities exchange or with the
Securities and Exchange Commission;
(iii) promptly upon (and in no event later than three days
after) any of the chairman of the board, the chief executive officer,
the president, the chief accounting officer, the chief financial
officer or the treasurer of the Borrower obtaining actual knowledge (x)
of any condition or event which constitutes an Event of Default or
Default, or (y) of a Material Adverse Effect, an Officer's Certificate
specifying the nature and period of existence of any such condition or
event, or specifying the notice given or action taken by such holder or
Person and the nature of such claimed default, Event of Default,
Default, event or condition, and what action, if any, the Borrower has
taken, is taking and proposes to take with respect thereto;
(iv) with reasonable promptness, such other information and
data with respect to the Borrower or any of its Subsidiaries as from
time to time may be reasonably requested by any Lender.
46
42
SECTION 5.02. Corporate Existence. Except as may result from a
transaction permitted by Section 6.01 hereof, the Borrower will maintain its
corporate existence in good standing and qualify and remain qualified to do
business as a foreign corporation in each jurisdiction in which the character of
the properties owned or leased by it therein or in which the transaction of its
business is such that the failure to qualify would have a Material Adverse
Effect.
SECTION 5.03. Payment of Taxes. The Borrower will, and will
cause each of its Subsidiaries to, pay all taxes, assessments and other
governmental charges imposed upon it or any of its properties or assets or in
respect of any of its franchises, business, income or property when due which
are material to the Borrower and its Subsidiaries, taken as a whole, provided,
that no such amount need be paid if being contested in good faith by appropriate
proceedings diligently conducted and if such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor.
SECTION 5.04. Maintenance of Properties; Insurance. The
Borrower will maintain or cause to be maintained in good repair, working order
and condition (ordinary wear and tear excepted) all material properties and
equipment used or useful in its business. The foregoing sentence shall not be
construed as to prohibit or restrict the sale or disposition of any assets of
the Borrower or any of its Subsidiaries. The Borrower will maintain or cause to
be maintained, with financially sound and reputable insurers, insurance with
respect to its material properties and business and the material properties and
business of its Subsidiaries against loss or damage of the kinds customarily
insured against by corporations of established reputation engaged in the same or
similar businesses and similarly situated, of such types and in such amounts as
are customarily carried under similar circumstances by such other corporations.
SECTION 5.05. Compliance with Laws. The Borrower and its
Subsidiaries shall exercise all due diligence in order to comply in all material
respects with the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority (including, without limitation, laws, rules
and regulations relating to the disposal of hazardous wastes and asbestos in the
environment), noncompliance with which would have a Material Adverse Effect.
SECTION 5.06. Notices of ERISA Event. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
$50,000,000.
ARTICLE VI
47
43
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Fundamental Changes. The Borrower will not
consolidate with or merge with or into, or transfer all or substantially all of
its properties and assets to one or more Persons in one or a series of related
transactions unless (i) if the Borrower is the surviving entity in any such
transaction, after giving effect to such transaction, there would not exist any
Default or Event of Default hereunder or (ii) if the Borrower is not the
surviving entity in any such transaction, each of the Lenders (or in the case of
any such transaction which is in the nature of an internal corporate
reorganization of only the Borrower and its Subsidiaries and does not, in the
reasonable judgement of the Required Lenders affect, in any material respect,
the creditworthiness of the Borrower, the Required Lenders) consent to such
transaction in advance.
SECTION 6.02. Liens. The Borrower will not, and will not
permit any of its Subsidiaries to, directly or indirectly, create, incur, assume
or permit to exist any Lien on or with respect to any property or asset
(including any document or instrument in respect of goods or accounts
receivable) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, except:
(a) Liens in existence on the date hereof and set forth on
Schedule 6.02 hereto;
(b) Permitted Liens;
(c) Purchase money security interests (including mortgages,
conditional sales, Capitalized Leases and any other title retention or deferred
purchase devices) in real or tangible personal property of the Borrower or any
of its Subsidiaries existing or created at the time of acquisition thereof or
within 90 days thereafter, and the renewal, extension or refunding of any such
security interest in an amount not exceeding the amount thereof remaining unpaid
immediately prior to such renewal, extension or refunding; provided, however,
that the principal amount of Indebtedness and Capitalized Lease Obligations
secured by each such security interest in each item of property shall not exceed
the cost (including all such Indebtedness secured thereby, whether or not
assumed) of the item subject thereto and that such security interests shall
attach solely to the particular item of property so acquired; and
(d) In addition to Liens permitted by clauses (a) - (c), the
Borrower and its Subsidiaries may have attachment or judgment Liens and Liens
securing
48
44
the payment of Indebtedness, which Liens secure in the aggregate not more than
$100,000,000.
SECTION 6.03. Financial Covenants. The Borrower shall not
permit the Indebtedness to Cash Flow Ratio for each Determination Date which is
the last day of a Fiscal Quarter of the Borrower to be greater than 4.0:1.0 at
any time.
SECTION 6.04. Use of Proceeds. No portion of the proceeds of
any borrowing under this Agreement shall be used by the Borrower in any manner
which would cause the borrowing or the application of such proceeds to violate
Regulation G, Regulation U, Regulation T, or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of the Board or
to violate the Exchange Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
ARTICLE VII
Events of Default
If any of the following conditions or events ("Events of
Default") shall occur and be continuing:
SECTION 7.01. Failure to Make Payments When Due. Failure to
pay any installment of principal of any Loan when due, whether at stated
maturity, by acceleration, by notice of prepayment or otherwise; or failure to
pay any other amount due under this Agreement (including, without limitation,
the fees described in Section 2.11 hereof) or to pay interest on any Loan, in
either case within 3 Business Days after the date when due.
SECTION 7.02. Default in Other Agreements. (a) Failure of the
Borrower or any of its Material Subsidiaries to pay when due, after giving
effect to any applicable grace period and to any waiver or extension granted
thereunder, any principal or interest on any Indebtedness of the Borrower or any
Material Subsidiary (other than Indebtedness referred to in subsection 7.01) and
Capital Lease Obligations in a principal amount (individually or in the
aggregate) of $50,000,000 or more.
(b) The breach or default of the Borrower or any of its
Subsidiaries with respect to any other term of any Indebtedness or Capital Lease
Obligations in a principal amount (individually or in the aggregate) of
$50,000,000 or more or any loan agreement, mortgage, indenture or other
agreement relating thereto, if such failure, default or breach results in such
Indebtedness or Capital Lease Obligations in a principal amount (individually or
in the aggregate) of $50,000,000 or more becoming or being declared by the
holders thereof to be
49
45
due and payable prior to its stated maturity; provided that if the Borrower or
any of its Material Subsidiaries enters into or is a party (as a borrower,
guarantor or other obligor) to any such loan agreement, mortgage, indenture or
other agreement and such instrument contains a provision in the nature of a
"cross-default" clause (whether as a default provision, a covenant or
otherwise), such provision is hereby incorporated by reference in this
Agreement, mutatis mutandis, for the benefit of the Lenders and the Agent (and
without giving effect to any amendment, modification or waiver unless such
amendment, modification or waiver is intended solely to cure any ambiguity,
omission, defect or inconsistency (which intention shall be determined in good
faith by the Chief Financial Officer of the Borrower)); provided, further, that
notwithstanding anything contained in this Agreement to the contrary, this
Section 7.02 shall not be applicable to any Indebtedness of, or Capitalized
Lease Obligation (or loan agreement, mortgage, indenture or other agreement
relating thereto) entered into by, a partnership (a "Partnership") of which any
Subsidiary of the Borrower is a general partner (a "General Partner") of said
Partnership provided that (i) such General Partner's only asset is its interest
in the Partnership and (ii) such Indebtedness and/or Capitalized Lease
Obligation, as the case may be, (A) is with recourse only to such asset, the
assets of the Partnership and any asset or assets of any general partner or
other entity that is not an Affiliate of the General Partner and (B) is without
recourse to the Borrower and any of its other Subsidiaries.
SECTION 7.03. Breach of Certain Covenants. Failure of the Borrower
to perform or comply with any term or condition contained in Section 5.02 or
Article 6 of this Agreement.
SECTION 7.04. Breach of Warranty. Any material representation or
warranty made by the Borrower in this Agreement or in any statement or
certificate at any time given by the Borrower in writing pursuant hereto or
thereto or in connection herewith or therewith shall be false in any material
respect on the date as of which made or deemed to be made.
SECTION 7.05. Other Defaults Under Agreement. The Borrower shall
default in the performance of or compliance with any term contained in this
Agreement (other than any default described in any other provision of Section 7
hereof) and such default shall not have been remedied or waived within 30 days
after receipt by the Borrower of notice from the Agent or any Lender of such
default.
SECTION 7.06. Change In Control. (a) The acquisition (other than
from the Borrower) by any Person or any "group", within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act (excluding, for this purpose, the
Borrower or its Subsidiaries or any employee benefit plan of the Borrower or its
Subsidiaries) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either the then
50
46
outstanding shares of common stock or the combined voting power of the
Borrower's then outstanding voting securities entitled to vote generally in the
election of directors; or (b) individuals who, as of the date hereof, constitute
the Board of Directors of the Borrower (as of the date hereof, the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the date hereof,
whose election, or nomination for election by the Borrower's shareholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Borrower, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) shall be, for purposes of this provision, considered as though
such person were a member of the Incumbent Board.
SECTION 7.07. Involuntary Bankruptcy; Appointment of Receiver, etc.
(a) A court having jurisdiction in the premises shall enter a decree or order
for relief in respect of the Borrower or any of its Material Subsidiaries in an
involuntary case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, which decree or
order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law and is not stayed.
(b) An involuntary case is commenced against the Borrower or any of
its Material Subsidiaries under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over the
Borrower or any of its Material Subsidiaries, or over all or a substantial part
of its property, shall have been entered; or an interim receiver, trustee or
other custodian of the Borrower or any of its Material Subsidiaries for all or a
substantial part of the property of the Borrower or any of its Material
Subsidiaries is involuntarily appointed; or a warrant of attachment, execution
or similar process is issued against any substantial part of the property of the
Borrower or any of its Material Subsidiaries; and the continuance of any such
events in subpart (b) for 90 days unless dismissed, bonded or discharged.
SECTION 7.08. Voluntary Bankruptcy; Appointment of Receiver, etc.
The Borrower or any of its Material Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; the making by the Borrower or any of its Material
Subsidiaries of any
51
47
assignment for the benefit of creditors generally; or the inability or failure
of the Borrower or any of its Material Subsidiaries, or the admission by the
Borrower or any of its Material Subsidiaries in writing of its inability to pay
its debts as such debts become due; or the Board of Directors of the Borrower or
any Material Subsidiary (or any committee thereof) adopts any resolution or
otherwise authorizes action to approve any of the foregoing; or
SECTION 7.09. Judgments and Attachments. Any money judgment, writ or
warrant of attachment, or similar process involving individually or at any one
time in the aggregate an amount in excess of $100,000,000 (calculated net of
insurance coverage, so long as such coverage has been accepted by the relevant
insurance company or companies) shall be entered or filed against the Borrower
or any of its Subsidiaries or any of its assets and shall remain undischarged,
unvacated, unbonded or unstayed, as the case may be, for a period of 90 days or
in any event later than five days prior to the date of any announced sale
thereunder; or
SECTION 7.10. Involuntary Dissolution. Any order, judgment or decree
shall be entered against the Borrower or any of its Material Subsidiaries
decreeing the dissolution or split up of the Borrower or any of its Material
Subsidiaries and such order shall remain undischarged or unstayed for a period
in excess of 60 days; or
SECTION 7.11. ERISA Event. An ERISA Event shall have occurred that,
when taken together with all other ERISA Events that have occurred, could
reasonably be expected to result in a Material Adverse Effect; or
THEN (i) upon the occurrence of any Event of Default described in
the foregoing subsection 7.07 or 7.08, the unpaid principal amount of and
accrued interest on the Loans and any fees and other amounts owing by the
Borrower under this Agreement and the Notes shall automatically become
immediately due and payable, without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by the
Borrower and the obligation of each Lender to make any Loans shall thereupon
terminate, and (ii) upon the occurrence of any other Event of Default, the
Agent, as directed by the Required Lenders, may, by written notice to the
Borrower, declare all of the unpaid principal amount of and accrued interest on
the Loans and any fees and other amounts owing by the Borrower under this
Agreement and the Notes to be, and the same shall forthwith become immediately,
due and payable, together with accrued interest thereon, and the obligation of
each Lender to make any Loan hereunder shall thereupon terminate. Nevertheless,
if at any time within 60 days after acceleration of the maturity of the Loans
the Borrower shall pay all arrears of interest and all payments on account of
the principal which shall have become due otherwise than by acceleration (with
interest on principal and, to the extent permitted by law, on overdue interest,
at the rates specified in this Agreement or the Notes) and all other fees or
52
48
expenses then owed hereunder and all Events of Default and Defaults (other than
non-payment of principal of and accrued interest on the Loans and the Notes due
and payable solely by virtue of acceleration) shall be remedied or waived
pursuant to Section 9.02 hereof, then the Required Lenders by written notice to
the Borrower may (in their sole discretion) rescind and annul the acceleration
and its consequences; but such action shall not affect any subsequent Event of
Default or Default or impair any right consequent thereon.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of
53
49
any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative
54
50
Agent's resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention of Xxxxx Xxxxxxxx, Senior Vice President and
Treasurer (Telecopy No. (000) 000-0000), with a copy to Attention of Xxxxxxx
X. Xxxxxx, Senior Vice President and General Counsel (Telecopy No. (212) 512-
4827);
(b) if to the Administrative Agent, to The Chase Manhattan Bank,
Agent Bank Services Group, Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxxxx Telecopy No. (000) 000-0000, with a copy
to The Chase Manhattan Bank, Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx
00000, Attention of Xxxxx X. Xxxxxxxxxx Telecopy No. (000) 000-0000;
(c) if to the Swingline Lender, to The Chase Manhattan Bank,
Agent Bank Services Group, Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxxx Xxxxxx Telecopy No. (000) 000-0000; and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All
55
51
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse
any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Swingline Lender hereunder without the prior written consent of the
Administrative Agent or the Swingline Lender, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable and actual out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable and actual
56
52
fees, charges and disbursements of counsel for the Administrative Agent, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) all
reasonable and actual out-of-pocket expenses incurred by the Administrative
Agent or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender, in connection with the
enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of the Transactions or any
other transactions contemplated hereby, (ii) any actual or alleged presence or
release of hazardous materials on or from any property owned or operated by the
Borrower or any of its Subsidiaries, or any environmental liability related in
any way to the Borrower or any of its Subsidiaries, or (iii) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or the Swingline Lender under
paragraph (a) or (b) of this Section , each Lender severally agrees to pay to
the Administrative Agent or the Swingline Lender, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or the Swingline Lender in its capacity as
such.
(d) To the extent permitted by applicable law, each of the Borrower,
the Lenders and the Administrative Agent shall not assert, and hereby waives,
any claim against any Indemnitee or any other party hereto, on any theory of
liability, for special, indirect, consequential or punitive damages (as
57
53
opposed to direct or actual damages) arising out of, in connection with, or as a
result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions or the use of the proceeds thereof.
(e) The Borrower shall not be liable for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements which may be imposed on, incurred by or
asserted against an Indemnitee that is a Lender by another Lender or any entity
which has purchased or otherwise acquired a participation in any Loan,
Commitment or interest herein or in a Note of such Indemnitee to the extent such
relate solely to or arise solely out of actions taken or not taken by the
Indemnitee Lender in connection with matters that are of an "interbank nature".
To the extent that the undertaking to indemnify, pay and hold harmless set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy or otherwise, the Borrower shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law, to the
payment and satisfaction of all indemnified liabilities incurred by the
Indemnitees or any of them.
(f) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
except in the case of an assignment to a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Commitment or any Lender's obligations in respect of its Swingline Exposure, the
Swingline Lender) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld it being understood that the
Borrower will not be deemed to act unreasonably if it shall withhold consent on
the basis of concerns relating to a proposed assignee's creditworthiness), (ii)
except in the case of an assignment to a Lender or an assignment of the entire
58
54
remaining amount of the assigning Lender's Commitment, the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 unless
each of the Borrower and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not apply to rights in respect of outstanding
Competitive Loans, (iv) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
Section 7.07 or 7.08 has occurred and is continuing. Upon acceptance and
recording pursuant to paragraph (d) of this Section, from and after the
effective date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment
59
55
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Swingline Lender, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any Federal Reserve Bank for such Lender
as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the
60
56
making of any Loans, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and
Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of
61
57
each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement against the
Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE
62
58
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. The Lenders shall hold all non-public
information obtained pursuant to this Agreement which has been identified as
such by the Borrower in accordance with their customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices and in any event may make disclosure reasonably required by
any bona fide transferee or participant in connection with the contemplated
transfer of any Note, Loan or Commitment or participation therein or as required
or requested by any governmental agency or representative thereof or pursuant to
legal process; provided that, unless specifically prohibited by applicable law
or court order, each Lender shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender by such
governmental agency) or request pursuant to legal process for disclosure of any
such non-public information prior to disclosure of such information so that
either or both of them may seek an appropriate protective order; and further,
provided that in no event shall any Lender be obligated or required to return
any materials furnished by the Borrower or any of its Subsidiaries.
63
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE XxXXXX-XXXX COMPANIES,
INC.,
by
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent,
by
-------------------------
Name:
Title:
64
BANKERS TRUST COMPANY,
by
------------------------
Name:
Title:
65
CITIBANK, N.A.,
by
------------------------
Name:
Title:
66
BANK OF AMERICA ILLINOIS,
by
------------------------
Name:
Title:
00
XXXX XX XXXXXXXX, XXXXXXX
BRANCH
by
------------------------
Name:
Title:
68
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY,
by
------------------------
Name:
Title:
00
XXXXX XXXXX XXXXXXXX XXXX XX
XXXXX XXXXXXXX,
by
------------------------
Name:
Title:
70
ISTITUTO BANCARIO SAN PAOLO DI
TORINO S.P.A.,
by
------------------------
Name:
Title:
71
MARINE MIDLAND BANK,
by
------------------------
Name:
Title:
72
NATIONAL WESTMINSTER BANK
PLC/NEW YORK BRANCH,
by
------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK
PLC/NASSAU BRANCH,
by
------------------------
Name:
Title:
00
XXX XXXX XX XXX XXXX,
by
------------------------
Name:
Title:
00
XXX XXXX XX XXXX XXXXXX,
by
------------------------
Name:
Title:
75
THE DAI-ICHI KANGYO BANK, LTD.,
by
------------------------
Name:
Title:
00
XXX XXXX XXXX XXXXXXX, XXX XXXX
BRANCH
by
------------------------
Name:
Title:
77
THE NORTHERN TRUST COMPANY,
by
------------------------
Name:
Title:
78
THE SAKURA BANK, LIMITED,
by
------------------------
Name:
Title:
00
XXX XXXXX XXXX XXXXXXX - XXX
XXXX BRANCH,
by
------------------------
Name:
Title:
80
THE YASUDA TRUST AND BANKING
CO., LTD., NY BRANCH
by
------------------------
Name:
Title:
81
SCHEDULE 2.01 TO
CREDIT AGREEMENT
LENDERS' COMMITMENTS
LENDER COMMITMENT
------ ----------
The Chase Manhattan Bank $95,000,000
Domestic and Eurodollar Lending Office:
One Chase Xxxxxxxxx Xxxxx
Xxx Xxxx, X X 00000
Xxxxxxxxx: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bankers Trust Company $75,000,000
Domestic and Eurodollar Lending Office:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Citibank, N.A. $75,000,000
Domestic and Eurodollar Lending Office:
0 Xxxxx Xxxxxx 0/0
Xxxx Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bank of America Illinois $37,000,000
Domestic and Eurodollar Lending Office:
000 Xxxxx Xxxxxxx Xxxxxx, 0X
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile (000) 000-0000
82
2
LENDER COMMITMENT
------ ----------
Bank of Montreal, Chicago Branch $37,000,000
Domestic and Eurodollar Lending Office:
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bank of Tokyo-Mitsubishi Trust Company $37,000,000
Domestic and Eurodollar Lending Office:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
First Union National Bank of North Carolina $37,000,000
Domestic and Eurodollar Lending Office:
000 Xxxxx Xxxxxxx Xxxxxx - XX0
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Istituto Bancario San Paolo Di Torino S.p.A. $37,000,000
Domestic and Eurodollar Lending Office:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Marine Midland Bank $37,000,000
Domestic and Eurodollar Lending Office:
000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
83
3
LENDER COMMITMENT
------ ----------
National Westminster Bank PLC $37,000,000
Domestic Lending Office:
National Westminster Bank PLC/New York Branch
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Eurodollar Lending Office:
National Westminster Bank PLC/Nassau Branch
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Bank of New York $37,000,000
Domestic and Eurodollar Lending Office:
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/8634
The Bank of Nova Scotia $37,000,000
Domestic and Eurodollar Lending Office:
0 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Dai-Ichi Kangyo Bank, Ltd. $37,000,000
Domestic and Eurodollar Lending Office:
0 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 or (000) 000-0000
84
4
LENDER COMMITMENT
------ ----------
The Fuji Bank Limited, New York Branch $37,000,000
Domestic and Eurodollar Lending Office:
Two World Trade Center, 79th Floor
New York, NY 10048
Attention: Xxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Northern Trust Company $37,000,000
Domestic and Eurodollar Lending Office:
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Honda
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Sakura Bank, Limited $37,000,000
Domestic and Eurodollar Lending Office:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Sanwa Bank Limited - New York Branch $37,000,000
Domestic and Eurodollar Lending Office:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Yasuda Trust and Banking Co., Ltd., NY Branch $37,000,000
Domestic and Eurodollar Lending Office:
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TOTAL: $800,000,000
85
SCHEDULE 3.01 TO
CREDIT AGREEMENT
MATERIAL SUBSIDIARIES
None.
86
SCHEDULE 3.05 TO
CREDIT AGREEMENT
MATERIAL LITIGATION
As disclosed in the Borrower's 10-Q for the quarter ended June 30,
1996, a Complaint was filed on June 11, 1996 in United States Bankruptcy Court,
Central District of California, in an action captioned County of Orange x.
XxXxxx-Xxxx Companies, Inc., d/b/a Standard & Poor's. Case No. SA 94-22272 JR;
Adversary No. SA 96-01624. In the Complaint, Orange County, California makes
claims against Standard & Poor's for breach of contract, professional negligence
and for aiding and abetting breaches of fiduciary duty arising out of ratings
services provided by Standard & Poor's to Orange County in 1993-94 and prior to
Orange County's filing for bankruptcy protection under chapter 9 on December 6,
1994. The Complaint alleges that Standard & Poor's caused Orange County to
sustain losses in excess of $500,000,000. The Borrower believes that the
allegations of the Complaint lack merit and intends to vigorously contest the
action.
87
SCHEDULE 6.02 TO
CREDIT AGREEMENT
LIENS
None.
88
EXHIBIT A
to the
Credit
Agent
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of February __,
1997 (as amended and in effect on the date hereof, the "Credit Agreement"),
among The XxXxxx-Xxxx Companies, Inc., the Lenders named therein and The Chase
Manhattan Bank, as Administrative Agent for the Lenders. Terms defined in the
Credit Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns,
without recourse, to the Assignee named on the reverse hereof, and the Assignee
hereby purchases and assumes, without recourse, from the Assignor, effective as
of the Assignment Date set forth on the reverse hereof, the interests set forth
on the reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Revolving Loans and Competitive Loans owing to the
Assignor which are outstanding on the Assignment Date, together with the
participations in Swingline Loans held by the Assignor on the Assignment Date,
but excluding accrued interest and fees to and excluding the Assignment Date.
The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.16(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
89
2
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
90
3
Percentage Assigned of
Facility/Commitment (set
forth, to at least 8
Principal Amount decimals, as a
Assigned (and percentage of the
identifying Facility and the
information as to aggregate Commitments
individual of all Lenders
Facility Competitive Loans) thereunder)
-------- ------------------ -----------
Commitment Assigned: $ %
Revolving Loans:
Competitive Loans:
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor] , as Assignor
By: ________________________________
Name:
Title:
[Name of Assignee] , as Assignee
By: ________________________________
Name:
Title:
The undersigned hereby consent to the within assignment:
The XxXxxx-Xxxx Companies, Inc.,
By: ________________________
Name:
Title:
The Chase Manhattan Bank, as The Chase Manhattan Bank, as
Administrative Agent, Swingline Lender,
91
4
By: ___________________________ By: ___________________________
Name: Name:
Title: Title:
92
EXHIBIT B
to the
Credit
Agent
February 13, 1997
To each of the Lenders listed
on Schedule I hereto:
I am the General Counsel of The XxXxxx-Xxxx Companies, Inc., a New York
corporation (the "Borrower"). This opinion is being furnished to you pursuant to
Section 4.01 of that certain Credit Agreement dated as of February 13, 1997 (the
"Agreement"), among the Borrower, each of the Lenders (the "Lenders") listed
therein and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent"). The undersigned has prepared this opinion and delivered
it to the Lenders for their benefit at the request of the Borrower. Unless
otherwise defined herein, the meanings of the capitalized terms used in this
opinion shall be the same as those in the Agreement.
I advise you that, in my opinion:
1. The Borrower is and each Material Subsidiary of the Borrower is a
corporation duly organized, validly existing and in corporate good standing
under the laws of its state of incorporation and has all requisite corporate
power and authority to own, operate and lease its properties and to carry on its
business as now conducted and proposed to be conducted. The Borrower is in good
standing in each jurisdiction in which the nature of the business conducted or
the properties or assets owned or leased by it makes such qualification
reasonably necessary and where the failure to qualify would have a Material
Adverse Effect.
2. The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Agreement. The execution,
delivery and performance of the Agreement has been duly authorized by all
necessary corporate action by the Borrower.
3. The execution, delivery and performance by the Borrower of the
93
2
Agreement do not and will not (i) violate any provision of law applicable to the
Borrower, or any of its Material Subsidiaries, the Restated Certificate of
Incorporation or By-Laws of the Borrower or the Certificate of Incorporation or
By-Laws of any of its Material Subsidiaries, or any order, judgment or decree of
any court or other agency of government binding on the Borrower or any of its
Material Subsidiaries, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any contractual
obligation of the Borrower or any of its Material Subsidiaries, (iii) result in
or require the creation or imposition of any Lien upon any of the material
properties or assets of the Borrower or any of its Material Subsidiaries or (iv)
require any approval of stockholders or any approval or consent of any Person
under any contractual obligation of the Borrower or any of its Material
Subsidiaries other than such approvals or consents which have been obtained or
will be obtained on or before the Effective Date; except for any violation,
conflict, default, breach, Lien or lack of approval the existence of which would
not have a Material Adverse Effect.
4. The Borrower has duly executed and delivered the Agreement.
5. Except as disclosed in the Financial Statements delivered to the
Lenders pursuant to Section 3.03 of the Agreement or disclosed in Schedule 3.05
to the Agreement, there is no action, suit, proceeding, governmental
investigation or arbitration of which I have knowledge (whether or not
purportedly on behalf of the Borrower or any of its Subsidiaries) at law or in
equity or before or by any Governmental Authority, domestic or foreign, pending
or, to my knowledge, threatened against the Borrower or any of its Subsidiaries
or affecting any property of the Borrower or any of its Subsidiaries which (i)
challenges the validity of the Agreement or (ii) could reasonably be expected to
have a Material Adverse Effect.
6. The execution, delivery and performance by the Borrower of the
Agreement do not and will not require any registration with, consent or approval
of, or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body other than any such registration,
consent, approval, notice or other action which has been duly made, given or
taken.
7. The Borrower is not an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
8. The Borrower is not subject to regulation under any federal or state
statute or regulation limiting its ability to incur indebtedness for money
borrowed as contemplated by the Agreement.
I am admitted to the practice law in the State of New York. No opinion is
94
3
expressed herein with respect to any laws other than those of the State of New
York and the United States.
Very truly yours,
Xxxxxxx X. Xxxxxx
95
4
SCHEDULE I
The Chase Manhattan Bank
Bankers Trust Company
Citibank, N.A.
Bank of America
Bank of Montreal
Bank of Tokyo-Mitsubishi Trust Company
First Union National Bank
Instituto Bancario San Paolo Di Torino, S.p.A.
Marine Midland Bank
National Westminster Bank PLC
The Bank of New York
The Bank of Nova Scotia
The Dai-Ichi Kangyo Bank, Ltd.
The Fuji Bank Limited
The Northern Trust Company
The Sakura Bank, Ltd.
The Sanwa Bank, Limited
The Yasuda Trust and Banking Company, Ltd.
96
EXHIBIT C
to the
Credit
Agent
February 13, 1997
To the Lenders listed on
Annex A hereto and to
The Chase Manhattan Bank,
as Administrative Agent
under the Credit Agreement
referred to below
The XxXxxx-Xxxx Companies, Inc.
Ladies and Gentlemen:
We have acted as special New York counsel to The XxXxxx-Xxxx
Companies, Inc. (the "Borrower") in connection with the preparation of the
Credit Agreement dated as of February 13, 1997 (the "Credit Agreement"), among
the Borrower, the Lenders parties thereto and The Chase Manhattan Bank, as
Administrative Agent. Unless otherwise indicated, capitalized terms used herein
but not otherwise defined herein shall have the respective meanings set forth in
the Credit Agreement.
In connection with this opinion, we have examined a counterpart of
the Credit Agreement. In our examination of such counterpart of the Credit
Agreement, we have assumed that such counterpart is authentic and complete. We
have also assumed that each of the Borrower, the Lenders and the Administrative
Agent has duly executed and delivered the Credit Agreement.
In addition, we have assumed, without independent investigation,
that (a) each of the Borrower, the Lenders, and the Administrative Agent is a
corporation or other entity duly organized and validly existing under the laws
of the jurisdiction of its organization, (b) each of the Borrower, the Lenders
and the Administrative Agent has full power and authority (corporate and
otherwise) to execute, deliver and perform the Credit Agreement, (c) the
execution, delivery and performance by each of the Borrower, the Lenders and the
Administrative Agent of the Credit Agreement have been duly authorized by all
necessary action (corporate or otherwise) and do not (i) contravene the
certificate of incorporation, bylaws or other constituent documents of the
Borrower, any of the Lenders or the Administrative Agent, (ii) except with
respect to Generally Applicable Law (as defined below and as to which we make no
assumption), violate any law, rule or regulation applicable to the Borrower, any
of the Lenders or the Administrative Agent or (iii) conflict with or result in
the breach of any document or instrument binding on the Borrower, any of the
Lenders or the Administrative Agent and (iv) except with respect to Generally
Applicable Law (as to which we make no assumption), no authorization, approval,
consent or other action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is
97
2
required for the due execution, delivery or performance by the Borrower, any of
the Lenders or the Administrative Agent of the Credit Agreement or, if any such
authorization, approval, consent, action, notice or filing is required therefor,
it has been duly obtained or made and is in full force and effect. As used in
this opinion letter, "Generally Applicable Law" means federal law of the United
States of America and the law of the State of New York and any rule or
regulation promulgated thereunder or pursuant thereto applicable to the
execution, delivery or performance of the Credit Agreement and which are
generally applicable to the execution, delivery or performance of documents with
terms and provisions of the type contained in the Credit Agreement and not
applicable thereto because of the specific nature of the assets or business of
the Borrower, any of the Lenders or the Administrative Agent or any of their
respective affiliates.
Based upon the foregoing examination and assumptions and upon such
other investigation as we have deemed necessary and subject to the
qualifications set forth below, we are of the opinion that the Credit Agreement
is the legal, valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms.
The opinion set forth above is subject to the following qualifications:
(a) Our opinion above is subject to the effect of general principles
of equity, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(b) Our opinion above is also subject to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
law affecting creditors' rights generally.
(c) We express no opinion as to the enforceability of
indemnification provisions in the Credit Agreement to the extent
enforcement thereof is contrary to public policy regarding the exculpation
of criminal violations, intentional harm and acts of gross negligence or
recklessness.
(d) Our opinion above is limited to the law of the State of New York
and the federal law of the United States of America and we do not express
any opinion herein concerning any other law. Without limiting the
generality of the foregoing, we express no opinion as to the effect of the
law of a jurisdiction other than the State of New York wherein any Lender
may be located or wherein enforcement of the Credit Agreement may be
sought that limits the rates of interest legally chargeable or
collectible.
98
3
A copy of this opinion letter may be delivered by you to any Person
that becomes a Lender in accordance with the provisions of the Agreement. Any
such Lender may rely on the opinions expressed above as if this opinion letter
were addressed and delivered to such Lender on the date hereof.
This opinion letter speaks only as of the date hereof. We expressly
disclaim any responsibility to advise you or any other Lender who is permitted
to rely on the opinion expressed herein as specified in the next preceding
paragraph of any development or circumstance of any kind including any change of
law or fact that may occur after the date of this opinion letter even though
such development, circumstance or change may affect the legal analysis, a legal
conclusion or any other matter set forth in or relating to this opinion letter.
Accordingly, any Lender relying on this opinion letter at any time should seek
advice of its counsel as to the proper application of this opinion letter at
such time.
Very truly yours,
WRG
99
ANNEX A
The Chase Manhattan Bank
Bankers Trust Company
Citibank, N.A.
Bank of America
Bank of Montreal
Bank of Tokyo-Mitsubishi Trust Company
First Union National Bank
Instituto Bancario San Paolo Di Torino S.p.A.
Marine Midland Bank
National Westminster Bank PLC
The Bank of New York
The Bank of Nova Scotia
The Daj-Ichi Kangyo Bank, Ltd.
The Fuji Bank Limited
The Northern Trust Company
The Sakura Bank, Ltd.
The Sanwa Bank, Limited
The Yasuda Trust and Banking Company, Ltd.
