EXHIBIT 10.24
EXECUTION COPY
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$1,300,000,000
FIVE-YEAR COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY
among
RAYTHEON COMPANY
as the Borrower,
RAYTHEON TECHNICAL SERVICES COMPANY and
RAYTHEON AIRCRAFT COMPANY,
each as a Guarantor,
THE LENDERS NAMED HEREIN,
BANK OF AMERICA, N.A.,
as Syndication Agent,
CITICORP USA, INC., CREDIT SUISSE FIRST BOSTON and MIZUHO FINANCIAL
GROUP,
as Documentation Agents,
and
JPMORGAN CHASE BANK,
as Administrative Agent,
Dated as of November 28, 2001
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X.X. XXXXXX SECURITIES INC. and
BANC of AMERICA SECURITIES LLC
as Joint Lead Arrangers and Joint Bookrunners
Table of Contents
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ARTICLE I Definitions....................................................................................1
SECTION 1.01. Defined Terms.................................................................1
SECTION 1.02. Terms Generally..............................................................14
ARTICLE II The Credits..................................................................................15
SECTION 2.01. Commitments..................................................................15
SECTION 2.02. Loans........................................................................15
SECTION 2.03. Competitive Bid Procedure....................................................16
SECTION 2.04. Borrowing Procedure..........................................................18
SECTION 2.05. Evidence of Debt; Repayment of Loans.........................................18
SECTION 2.06. Fees.........................................................................18
SECTION 2.07. Interest on Loans............................................................19
SECTION 2.08. Default Interest.............................................................20
SECTION 2.09. Alternate Rate of Interest...................................................20
SECTION 2.10. Termination and Reduction of Commitments.....................................20
SECTION 2.11. Conversion and Continuation of Revolving Credit Borrowings...................20
SECTION 2.12. Prepayment...................................................................22
SECTION 2.13. Reserve Requirements; Change in Circumstances................................22
SECTION 2.14. Change in Legality...........................................................23
SECTION 2.15. Indemnity....................................................................24
SECTION 2.16. Pro Rata Treatment...........................................................24
SECTION 2.17. Sharing of Setoffs...........................................................24
SECTION 2.18. Payments.....................................................................25
SECTION 2.19. Taxes........................................................................25
SECTION 2.20. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate......27
ARTICLE III LETTERS OF CREDIT...........................................................................28
SECTION 3.01. L/C Commitment...............................................................28
SECTION 3.02. Procedure for Issuance or Amendment of Letter of Credit......................28
SECTION 3.03. Fees and Other Charges.......................................................29
SECTION 3.04. L/C Participations...........................................................29
SECTION 3.05. Reimbursement Obligation of the Borrower.....................................30
SECTION 3.06. Obligations Absolute.........................................................30
SECTION 3.07. Letter of Credit Payments....................................................31
SECTION 3.08. Applications.................................................................31
ARTICLE IV Representations And Warranties...............................................................31
SECTION 4.01. Organization; Powers.........................................................31
SECTION 4.02. Authorization................................................................31
SECTION 4.03. Enforceability...............................................................32
SECTION 4.04. Governmental Approvals.......................................................32
Page
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SECTION 4.05. Financial Statements.........................................................32
SECTION 4.06. No Material Adverse Change...................................................32
SECTION 4.07. Litigation; Compliance with Laws.............................................32
SECTION 4.08. Federal Reserve Regulations..................................................32
SECTION 4.09. Investment Company Act; Public Utility Holding Company Act...................33
SECTION 4.10. Tax Returns..................................................................33
SECTION 4.11. No Material Misstatements....................................................33
SECTION 4.12. Employee Benefit Plans.......................................................33
SECTION 4.13. No Default...................................................................33
SECTION 4.14. Ownership of Property; Liens; Insurance......................................33
SECTION 4.15. Intellectual Property........................................................34
SECTION 4.16. Labor Matters................................................................34
SECTION 4.17. Environmental Matters........................................................34
SECTION 4.18. Solvency.....................................................................35
ARTICLE V Conditions Of Effectiveness and Lending.......................................................35
SECTION 5.01. All Borrowings...............................................................35
SECTION 5.02. Effectiveness................................................................36
ARTICLE VI Affirmative Covenants........................................................................37
SECTION 6.01. Existence; Businesses and Properties.........................................37
SECTION 6.02. Insurance....................................................................37
SECTION 6.03. Payment of Obligations; Taxes................................................38
SECTION 6.04. Financial Statements, Reports, etc...........................................38
SECTION 6.05. Litigation and Other Notices.................................................39
SECTION 6.06. Employee Benefits............................................................39
SECTION 6.07. Maintaining Records; Access to Properties and Inspections....................39
SECTION 6.08. Use of Proceeds..............................................................39
SECTION 6.09. Environmental Laws...........................................................39
SECTION 6.10. Termination of Existing Credit Agreement.....................................40
ARTICLE VII Negative Covenants..........................................................................40
SECTION 7.01. Liens........................................................................40
SECTION 7.02. Sale and Lease-Back Transactions.............................................41
SECTION 7.03. Mergers, Consolidations and Sales of Assets..................................41
SECTION 7.04. Subsidiary Indebtedness......................................................42
SECTION 7.05. Financial Covenants..........................................................42
ARTICLE VIII Events Of Default..........................................................................43
ARTICLE IX The Administrative Agent.....................................................................45
ARTICLE X Guarantee.....................................................................................47
ARTICLE XI Miscellaneous................................................................................48
SECTION 11.01. Notices......................................................................48
SECTION 11.02. Survival of Agreement........................................................49
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SECTION 11.03. Binding Effect...............................................................49
SECTION 11.04. Successors and Assigns.......................................................49
SECTION 11.05. Expenses; Indemnity..........................................................52
SECTION 11.06. Right of Setoff..............................................................53
SECTION 11.07. APPLICABLE LAW...............................................................53
SECTION 11.08. Waivers; Amendment...........................................................53
SECTION 11.09. Interest Rate Limitation.....................................................53
SECTION 11.10. Entire Agreement.............................................................54
SECTION 11.11. WAIVER OF JURY TRIAL.........................................................54
SECTION 11.12. Severability.................................................................54
SECTION 11.13. Counterparts.................................................................54
SECTION 11.14. Headings.....................................................................54
SECTION 11.15. Jurisdiction; Consent to Service of Process..................................54
SECTION 11.16. Confidentiality..............................................................55
SECTION 11.17. Release of Guarantees........................................................55
SECTION 11.18. Waiver and Consent of the Existing Credit Agreement..........................56
EXHIBITS
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Exhibit A Administrative Questionnaire
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Borrowing Request
Exhibit D-1 Form of Competitive Bid Request
Exhibit D-2 Form of Notice of Competitive Bid Request
Exhibit D-3 Form of Competitive Bid
Exhibit D-4 Form of Competitive Bid Accept/Reject Letter
Exhibit E Form of Opinion of Xxxx X. Xxxxxxx
Exhibit F Form of Opinion of Xxxxxxx Xxxx LLP
Exhibit G Form of Issuing Lender Agreement
SCHEDULES
---------
Schedule 2.01 Lenders and Commitments
Schedule 4.01 Significant Subsidiaries
Schedule 4.05 Financial Statements/Material Liabilities
Schedule 4.07 Litigation
Schedule 7.01 Existing Liens
Schedule 7.04 Existing Subsidiary Indebtedness
iii
FIVE-YEAR COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY, dated as of
November 28, 2001, among Raytheon Company, a Delaware corporation (the
"Borrower"), Raytheon Technical Services Company, a Delaware corporation, and
Raytheon Aircraft Company, a Kansas corporation, each as a Guarantor (in such
capacity, each a "Guarantor" and, collectively, the "Guarantors"), the Lenders
(as defined in Article I), X.X. Xxxxxx SECURITIES, INC. and BANC OF AMERICA
SECURITIES LLC., as joint lead arrangers and joint bookrunners (in such
capacity, the "Arrangers"), Bank of America, N.A, as syndication agent (in such
capacity, the "Syndication Agent"), Citicorp USA, Inc., Credit Suisse First
Boston and Mizuho Financial Group, as documentation agents (in such capacity,
each a "Documentation Agent" and, collectively, the "Documentation Agents"), and
JPMORGAN CHASE BANK, a New York banking corporation, as administrative agent (in
such capacity, the "Administrative Agent", and, collectively with the
Syndication Agent and the Documentation Agents, the "Agents") for the Lenders.
The Borrower has requested the Lenders, and the Lenders have agreed, to
extend credit in the form of Revolving Loans at any time and from time to time
prior to the Maturity Date, in an aggregate principal amount at any time
outstanding not in excess of $1,300,000,000. The Borrower also has requested the
Lenders to provide a procedure pursuant to which the Borrower may invite the
Lenders to bid on an uncommitted basis on short-term borrowings by the Borrower.
The proceeds of the Loans are to be used by the Borrower for working capital and
general corporate purposes of the Borrower and its Subsidiaries.
The Lenders are willing to extend such credit to the Borrower on the terms
and subject to the conditions set forth herein. Accordingly, the parties hereto
agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at the Alternate Base Rate
in accordance with the provisions of Article II.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
in the form of Exhibit A.
"Affiliate" shall mean, when used 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.
"Agents" shall have the meaning assigned to such term in the preamble.
"Agents' Fees" shall have the meaning assigned to such term in Section
2.06(b).
"Aggregate Revolving Credit Exposure" shall mean the aggregate amount of
the Lenders' Revolving Credit Exposures.
2
"Agreement" shall mean this Five-Year Competitive Advance and Revolving
Credit Facility, as amended, supplemented or otherwise modified from time to
time.
"Alternate Base Rate" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/100 of 1%) equal to the greatest of (a) the
Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Base CD Rate or the Federal Funds Effective Rate or both for any
reason, including the inability or failure of the Administrative Agent to obtain
sufficient quotations in accordance with the terms hereof, the Alternate Base
Rate shall be determined without regard to clause (b) or (c), or both, of the
preceding sentence, as appropriate, until the circumstances giving rise to such
inability no longer exist. 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 on the effective date of such change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean, with respect to any Eurodollar Loan
(other than any Eurodollar Competitive Loan), with respect to any ABR Loan or
with respect to the Facility Fees, as the case may be, with respect to the day
of, and any day after, the Closing Date, the applicable percentage set forth
below under the caption "Eurodollar Spread", "ABR Spread" or "Fee Percentage",
as the case may be, based upon the ratings by S&P and Xxxxx'x, respectively,
applicable on such date to the Index Debt:
Eurodollar Spread ABR Spread Fee Percentage
----------------- ---------- --------------
Category 1
----------
BBB+ or higher by S&P or
Baa1 or higher by Xxxxx'x 0.600% 0.000% 0.150%
Category 2
----------
BBB by S&P or
Baa2 by Xxxxx'x 0.700% 0.000% 0.175%
Category 3
----------
BBB- by S&P or
Baa3 by Xxxxx'x 0.900% 0.000% 0.225%
Category 4
----------
BB+ by S&P
or Ba1 by Xxxxx'x 1.225% 0.500% 0.275%
Category 5
----------
BB or lower by S&P
or Ba2 or lower by Xxxxx'x 1.625% 1.000% 0.375%
For purposes of this definition, (i) if either Xxxxx'x or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this paragraph), 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 S&P
for the Index Debt shall fall within different Categories, the Applicable
Percentage shall be based on the higher of the two ratings unless the ratings
differ by more than one category, in which case the governing rating shall be
the rating next below the higher of the two; and (iii) if the ratings
established or deemed to have been established by Xxxxx'x and S&P for the Index
Debt shall be changed (other than as a result of a change in the rating
3
system of Xxxxx'x or S&P), such change shall be effective as of the date on
which it is first announced by the applicable rating agency. Each change in the
Applicable Percentage shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Xxxxx'x or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the non-availability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the Applicable Percentage shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"Application" shall mean an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing Lender to
open or amend a Letter of Credit.
"Arrangers" shall have the meaning assigned to such term in the preamble.
"Assignment and Acceptance" shall mean an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Base CD Rate" shall mean the sum of (a) the product of (i) the Three-Month
Secondary CD Rate and (ii) Statutory Reserves and (b) the Assessment Rate. The
term "Statutory Reserves" shall mean 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 and any other domestic banking authority to which the
Administrative Agent or any Lender (including any branch, Affiliate, or other
fronting office making or holding a Loan) is subject with respect to the Base CD
Rate, for new negotiable nonpersonal time deposits in Dollars of over $100,000
with maturities approximately equal to three months. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage. The term "Assessment Rate" shall mean for any date the
annual rate (rounded upwards, if necessary, to the next 1/100 of 1%) most
recently estimated by the Administrative Agent as the then current net annual
assessment rate that will be employed in determining amounts payable by the
Administrative Agent to the Federal Deposit Insurance Corporation (or any
successor) for insurance by such Corporation (or such successor) of time
deposits made in Dollars at the Administrative Agent's domestic offices.
"Board" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03) on a single
date and as to which a single Interest Period is in effect.
"Borrowing Request" shall mean a request by the Borrower in accordance with
the terms of Section 2.04 and substantially in the form of Exhibit C.
"Business" shall have the meaning assigned to such term in Section 4.17.
"Business Day" shall mean any day other than a Saturday, Sunday or day on
which banks in New York City are authorized or required by law to close;
provided, however, 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.
4
"Capital Lease Obligations" shall mean as to any person, the obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
A "Change in Control" shall be deemed to have occurred if (a) any "person"
or "group" as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) shall become the
"beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than 50% of the outstanding common stock
of the Borrower, or (b) a majority of the seats (other than vacant seats) on the
board of directors of the Borrower shall at any time have been occupied by
persons who were neither (i) nominated by the board of directors of the Borrower
nor (ii) appointed by directors so nominated.
"Closing Date" shall mean November 28, 2001.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment of
such Lender to make Revolving Loans hereunder and participate in Letters of
Credit in an aggregate principal and/or face amount not to exceed the amount set
forth opposite such Lender's name on Schedule 2.01 or in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be (a) reduced from time to time pursuant to Section 2.10 or pursuant to Section
2.16, and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 11.04. The aggregate initial Commitments
shall be $1,300,000,000.
"Competitive Bid" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a notification made by
the Borrower pursuant to Section 2.03(d) in the form of Exhibit D-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made by a
Lender pursuant to Section 2.03(b), (i) in the case of a Eurodollar Competitive
Loan, the Margin, and (ii) in the case of a Fixed Rate Loan, the fixed rate of
interest offered by the Lender making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to Section
2.03 in the form of Exhibit D-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the Borrower pursuant
to the bidding procedure described in Section 2.03. Each Competitive Loan shall
be a Eurodollar Competitive Loan or a Fixed Rate Loan.
5
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated October 2001, as revised, amended,
modified or otherwise supplemented prior to the date hereof.
"Consolidated EBITDA" " shall mean, for any period, the sum of (a)
Consolidated Net Income for such period and (b) the aggregate amounts deducted
in determining Consolidated Net Income in respect of (i) Consolidated Net
Interest Expense for such period, (ii) income taxes, depreciation and
amortization of the Borrower and its consolidated Subsidiaries for such period
determined in accordance with GAAP and (iii) write-offs of goodwill as required,
or as would be required in the next succeeding fiscal year of the Borrower, by
Statement of Financial Accounting Standards No. 142, Goodwill and Other
Intangible Assets.
"Consolidated Interest Coverage Ratio" shall mean for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Net Interest
Expense for such period.
"Consolidated Net Income": for any period, the consolidated net income (or
deficit) of the Borrower and its consolidated Subsidiaries for such period,
determined in accordance with GAAP; provided that (i) for the fiscal quarter of
the Borrower and its consolidated Subsidiaries ending April 1, 2001, such
Consolidated Net Income shall be increased by $325,000,000 representing one-time
charges recorded in connection with the discontinued operations of Raytheon
Engineers and Constructors, (ii) for the fiscal quarter of the Borrower and its
consolidated Subsidiaries ending July 1, 2001, such Consolidated Net Income
shall be increased by an aggregate amount not to exceed $272,000,000 for such
fiscal quarter, representing additional one-time charges to the extent recorded
in connection with the discontinued operations of Raytheon Engineers and
Constructors during such fiscal quarter and (iii) for the fiscal quarter of the
Borrower and its consolidated Subsidiaries ending September 30, 2001, such
Consolidated Net Income shall be increased by an aggregate amount not to exceed
$750,000,000 representing one-time charges recorded in connection with the
inventory write-down and valuation reserve related to various aircraft.
"Consolidated Net Interest Expense" shall mean, for any period, net
interest expense of the Borrower and its consolidated Subsidiaries for such
period, determined in accordance with GAAP.
"Consolidated Net Tangible Assets" shall mean, as at any date of
determination, the total amount of assets of the Borrower and the Subsidiaries
(less applicable depreciation, amortization and other valuation reserves) at
such date, after deducting therefrom (a) all current liabilities of the Borrower
and the Subsidiaries at such date and (b) all goodwill, trade names, trademarks,
patents, unamortized debt issuance fees and expenses and other like intangibles
at such date.
"Contractual Obligations" shall mean, as to any person, any provision of
any security issued by such person or of any agreement, instrument or other
undertaking to which such person is a party or by which it or any of its
property is bound.
"Control" shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and "Controlling" and "Controlled" shall have meanings correlative thereto.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States of America.
6
"Environmental Laws" shall mean any and all foreign, Federal, state, local
or municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other applicable laws or
regulations (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA Affiliate" shall mean 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" shall mean (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder, with respect to a Plan; (b)
the adoption of any amendment to a Plan that would require the provision of
security pursuant to Section 401(a)(29) of the Code or Section 307 of ERISA; (c)
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; (d) 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; (e) the incurrence of any liability under Title IV of ERISA
with respect to the termination of any Plan or the withdrawal or partial
withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; (f) the receipt by the Borrower or any ERISA Affiliate from
the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (g)
the receipt by the Borrower or any ERISA Affiliate of any notice that Withdrawal
Liability is being imposed or a determination that a Multiemployer Plan is, or
is expected to be, insolvent or in reorganization, within the meaning of Title
IV of ERISA; and (h) the occurrence of a non-exempt "prohibited transaction"
with respect to which the Borrower or any of its Subsidiaries is a "disqualified
person" (within the meaning of Section 4975) of the Code, or with respect to
which the Borrower or any such Subsidiary could otherwise be liable.
"Eurocurrency Reserve Requirements" shall mean for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate" shall mean with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
7
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Competitive Borrowing" shall mean a Borrowing comprised of
Eurodollar Competitive Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the Eurodollar Rate in accordance
with the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or Eurodollar
Competitive Loan.
"Eurodollar Rate" shall mean with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
---------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Revolving Credit Borrowing" shall mean a Borrowing comprised of
Eurodollar Revolving Loans.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Eurodollar Rate in accordance with the
provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in Article
VIII.
"Excess Utilization Day" shall mean each day on which the Utilization
Percentage exceeds 33.3%.
"Existing Credit Agreement" shall mean the Five-Year Competitive Advance
and Revolving Credit Facility Credit Agreement, dated as of May 30, 1997 (as
amended, supplemented or otherwise modified through the date hereof), among HE
Holdings, Inc, as the borrower, Xxxxxx Aircraft Company, as the guarantor, the
lenders from time to time parties thereto, Bank of America, N.A., as syndication
agent, and The Chase Manhattan Bank (now known as JPMorgan Chase Bank), as
administrative agent.
"Facility Fee" shall have the meaning assigned to such term in Section
2.06(a).
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" shall mean the Fee Letter, dated October 4, 2001, between the
Borrower, the Administrative Agent, the Syndication Agent and the Arrangers.
"Fees" shall mean the Facility Fees and the Agents' Fees.
"Financial Officer" of any corporation shall mean the chief financial
officer, principal accounting officer, Treasurer, Assistant Treasurer or
Controller of such corporation.
8
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed Rate
Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"GAAP" shall mean generally accepted accounting principles applied on a
consistent basis.
"Governmental Authority" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"Guarantee" of or by any person shall mean any obligation, contingent or
otherwise, of such person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other liability of any other person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligations of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
liability or to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Indebtedness or liability, (b) to purchase
property, securities or services for the purpose of assuring the owner of such
Indebtedness or liability of the payment of such Indebtedness or liability or
(c) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or liability.
"Guarantor" shall have the meaning assigned to such term in the preamble.
"Hedge Agreements" shall mean all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Indebtedness" of any person shall mean, as at any date of determination,
all indebtedness (including capitalized lease obligations) of such person and
its consolidated subsidiaries at such date that would be required to be included
as a liability on a consolidated balance sheet (excluding the footnotes thereto)
of such person prepared in accordance with GAAP applied on a basis consistent
with the application used in the financial statements referred to in Section
4.05.
"Index Debt" shall mean the senior, unsecured, non-credit enhanced,
long-term indebtedness for borrowed money of the Borrower.
"Interest Payment Date" shall mean, with respect to any 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 that would have been an Interest Payment Date
had successive Interest Periods of three months' duration been applicable to
such Borrowing, and, in addition, except with respect to any ABR Loan, the date
of any prepayment of such Loan or conversion of such Loan to a Loan of a
different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing or on the last day of the immediately
preceding Interest Period applicable to such Borrowing, as the case may be, and
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the Borrower may elect, (b) as to any ABR Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the earlier of (i) the next succeeding March 31, June 30,
9
September 30 or December 31 and (ii) the Maturity Date and (c) as to any Fixed
Rate Borrowing, the period commencing on the date of such Borrowing and ending
on the date specified in the Competitive Bids in which the offer to make the
Fixed Rate Loans comprising such Borrowing was extended, which shall not be
earlier than seven days after the date of such Borrowing or later than 360 days
after the date of such Borrowing; provided, however, that, 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 fall in the
next calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
Notwithstanding anything to the contrary in this definition of "Interest
Period", any Interest Period that would otherwise extend beyond the Maturity
Date shall end on the Maturity Date.
"Issuing Lender" shall mean JPMorgan Chase Bank, any of its Affiliates or
any other Lender (designated as an Issuing Lender in an Issuing Lender Agreement
executed by such Lender, the Borrower and the Administrative Agent), in each
case in its capacity as issuer of any Letter of Credit.
"Issuing Lender Agreement" shall mean an agreement, substantially in the
form of Exhibit G, executed by a Lender, the Borrower, and the Administrative
---------
Agent pursuant to which such Lender agrees to become an Issuing Lender
hereunder.
"L/C Commitment" shall mean the lesser of (i) $300,000,000 and (ii) the
Total Commitment.
"L/C Fee Applicable Percentage" shall mean, with respect to any Performance
Letter of Credit or with respect to any other Letter of Credit, as the case may
be, with respect to the day of, and any day after, the Closing Date, the
applicable percentage set forth below under the caption "Performance Letter of
Credit L/C Fee" or "Other Letter of Credit L/C Fee", as the case may be, based
upon the ratings by S&P and Moody's, respectively, applicable on such date to
the Index Debt:
Performance Letter of Other Letter of Credit L/C
Credit L/C Fee Fee
Category 1 --------------------- --------------------------
----------
BBB+ or higher by S&P or
Baa1 or higher by Moody's 0.45000% 0.60000%
Category 2
----------
BBB by S&P or
Baa2 by Moody's 0.52500% 0.70000%
Category 3
----------
BBB- by S&P or
Baa3 by Moody's 0.67500% 0.90000%
Cartegory 4
-----------
BB+ by S&P
or Ba1 by Moody's 0.91875% 1.22500%
Category 5
----------
BB or lower by S&P
or Ba2 or lower by Moody's 1.21875% 1.62500%
10
For purposes of this definition, (i) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this paragraph), 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 Moody's and S&P
for the Index Debt shall fall within different Categories, the L/C Fee
Applicable Percentage shall be based on the higher of the two ratings unless the
ratings differ by more than one category, in which case the governing rating
shall be the rating next below the higher of the two; and (iii) if the ratings
established or deemed to have been established by Moody's and S&P for the Index
Debt shall be changed (other than as a result of a change in the rating system
of Moody's or S&P), such change shall be effective as of the date on which it is
first announced by the applicable rating agency. Each change in the L/C Fee
Applicable Percentage 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 Moody's or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the non-availability of ratings from such rating agency and, pending the
effectiveness of any such amendment, the L/C Fee Applicable Percentage shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"L/C Fee Payment Date" shall mean the last day of each March, June,
September and December and the Maturity Date.
"L/C Obligations" shall mean, at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.05.
"L/C Participants" shall mean the collective reference to all the Lenders
other than the relevant Issuing Lender.
"Lender Affiliate" shall mean (a) any Affiliate of any Lender, (b) any
person that is administered or managed by any Lender or any Affiliate of any
Lender and that is engaged in making, purchasing, holding or otherwise investing
in commercial loans and similar extensions of credit in the ordinary course of
its business and (c) with respect to any Lender which is a fund that invests in
commercial loans and similar extensions of credit, any other fund that invests
in commercial loans and similar extensions of credit and is managed or advised
by the same investment advisor as such Lender or by an Affiliate of such Lender
or investment advisor.
"Lenders" shall mean (a) the financial institutions listed on Schedule 2.01
(other than any such financial institution that has ceased to be a party hereto
pursuant to an Assignment and Acceptance) and (b) any financial institution that
has become a party hereto pursuant to an Assignment and Acceptance.
"Letters of Credit" shall have the meaning assigned to such term in Section
3.01(a).
"Lien" shall mean, with respect to any asset of any person, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities that
constitute assets of such person, any purchase option, call or similar right of
a third party with respect to such securities.
"Loans" shall mean the Revolving Loans and the Competitive Loans.
11
"Mandatorily Redeemable Equity Securities" shall mean the 17,250,000 equity
security units, including any remarketed securities, issued by the Borrower in
May 2001. Each equity security unit consists of a contract to purchase shares of
the Borrower's common stock on May 15, 2004, and a mandatorily redeemable equity
security, with a stated liquidation amount of $50.00 due on May 15, 2004. The
mandatorily redeemable equity security represents an undivided interest in the
assets of RC Trust I, a Delaware business trust, formed for the purpose of
issuing these securities and whose assets consist solely of subordinated notes
issued by the Borrower.
"Margin" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the Eurodollar Rate
in order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"Margin Stock" shall have the meaning assigned to such term in Regulation
U.
"Material Adverse Effect" shall mean a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole.
"Materials of Environmental Concern" shall mean all explosive or
radioactive substances or wastes and all hazardous or toxic substances, wastes
or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, urea-formaldehyde
insulation, radon gas, infectious or medical wastes and all other substances or
wastes of any nature regulated pursuant to any Environmental Law.
"Maturity Date" shall mean the fifth anniversary of the Closing Date.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Obligations" shall mean (a) the due and punctual payment of (i) the
principal of and interest (including interest accruing during the pendency of
any bankruptcy, insolvency, receivership or other similar proceeding, regardless
of whether allowed or allowable in such proceeding) on the Loans, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise, and (ii) all other monetary obligations, including
Fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) of
the Borrower to the Lenders under this Agreement or any Letter of Credit and (b)
the due and punctual performance of all covenants, agreements, obligations and
liabilities of the Borrower under or pursuant to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"Performance Letter of Credit" shall mean any Letter of Credit issued to
support contractual obligations for supply, service or construction contracts,
including, but not limited to, bid, performance, advance payment, warranty,
retention, availability and defects liability obligations.
"Permitted Receivables Program" shall mean any receivables securitization
program pursuant to which the Borrower or any of the Subsidiaries sells accounts
receivable and related receivables to any non-Affiliate in a "true sale"
transaction; provided, however, that any related indebtedness incurred to
12
finance the purchase of such accounts receivable is not includible on the
balance sheet of the Borrower or any Subsidiary in accordance with GAAP and
applicable regulations of the Securities and Exchange Commission.
"person" shall mean any natural person, corporation, limited liability
company, business trust, joint venture, association, company, partnership or
government, or any agency or political subdivision thereof.
"Plan" shall mean 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 307 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.
"Prime Rate" shall mean the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective on the date such change is publicly announced as being effective.
"Property" shall have the meaning assigned to such term in Section 4.17.
"Ratio Certificate" shall mean a certificate, signed on behalf of the
Borrower by a Financial Officer of the Borrower, delivered to the Administrative
Agent on the Closing Date and as may be required by Section 6.04(c), and setting
forth the calculations, in reasonable detail, required to determine compliance
with all covenants set forth in Sections 7.05 (a) and (b) on the Closing Date or
on the last day of any fiscal quarter, as the case may be.
"Register" shall have the meaning given such term in Section 11.04(d).
"Regulation U" shall mean Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Reimbursement Obligation" shall mean the obligation of the Borrower to
reimburse the relevant Issuing Lender pursuant to Section 3.05 for amounts drawn
under Letters of Credit.
"Required Lenders" shall mean, at any time, the holders of more than 50% of
the Commitments then in effect or, if the Commitments have been terminated, the
Aggregate Revolving Credit Exposure then outstanding.
"Responsible Officer" of any corporation shall mean any executive officer
or Financial Officer of such corporation and any other officer or similar
official thereof responsible for the administration of the obligations of such
corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of Revolving
Loans.
"Revolving Credit Exposure" shall mean, as to any Lender at any time, an
amount equal to the sum of (a) the aggregate principal amount of all Revolving
Loans held by such Lender then outstanding and (b) such Lender's pro rata share
(determined in accordance with such Lender's Commitment as compared to the
aggregate Commitments or, if such Commitment has expired or been terminated, in
13
accordance with the Lender's Commitments in effect immediately prior to such
termination as compared to the Total Commitment at such time) of the L/C
Obligations then outstanding.
"Revolving Loans" shall mean the revolving loans made by the Lenders to the
Borrower pursuant to Section 2.01. Each Revolving Loan shall be a Eurodollar
Revolving Loan or an ABR Loan.
"S&P" shall mean Standard & Poor's Ratings Service.
"Significant Subsidiary" shall mean any Subsidiary that would be a
"Significant Subsidiary" at such time, as such term is defined in Regulation S-X
promulgated by the Securities and Exchange Commission as in effect on the
Closing Date. Notwithstanding Regulation S-X, each Guarantor will at all times
be deemed to be a Significant Subsidiary.
"Solvent" when used with respect to any person, shall mean that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such person will, as of such date, exceed the amount of all
"liabilities of such person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such person will, as of such date, be greater
than the amount that will be required to pay the liability of such person on its
debts as such debts become absolute and matured, (c) such person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Stockholders' Equity" shall mean, as at any date of determination, the
stockholders' equity of the Borrower and its consolidated Subsidiaries as of
such date, as determined in accordance with GAAP.
"subsidiary" shall mean, with respect to any person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"364-Day Credit Agreement" shall mean the 364-Day Credit Agreement, dated
as of the date hereof, among the Borrower, Raytheon Technical Services Company,
a Delaware corporation, and Raytheon Aircraft Company, a Kansas corporation,
each as a Guarantor, the several lenders from time to time parties thereto, X.X.
Xxxxxx Securities Inc. and Banc of America Securities LLC, as joint lead
arrangers and joint bookrunners, Citicorp USA, Inc., Credit Suisse First Boston
and Mizuho Financial Group, each as a documentation agent, Bank of America, N.A,
as the syndication agent, and JPMorgan Chase Bank, as the administrative agent.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a
14
Business Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if such
rate shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Administrative Agent
from three New York City negotiable certificate of deposit dealers of recognized
standing selected by it. "Total Capitalization" shall mean, as at any date of
determination, the sum of Total Debt at such date and Mandatorily Redeemable
Equity Securities and Stockholders' Equity at such date.
"Total Commitment" shall mean, at any time, the aggregate amount of the
Commitments, as in effect at such time.
"Total Debt" shall mean, at a particular date, all amounts which would be
included as indebtedness (including capitalized leases) on a consolidated
balance sheet of the Borrower and its consolidated Subsidiaries, determined in
accordance with GAAP.
"Transactions" shall have the meaning assigned to such term in Section
4.02.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, the term "Rate" shall include the
Eurodollar Rate and the Alternate Base Rate.
"Utilization Fee" shall have the meaning assigned to such term in Section
2.06(b).
"Utilization Percentage" shall mean on any day the percentage equivalent to
a fraction (a) the numerator of which is the sum of the aggregate outstanding
principal amount of (i) the Loans, (ii) the Loans (as defined under the 364-Day
Credit Agreement) and (iii) the L/C Obligations; and (b) the denominator of
which is the sum of (y) the aggregate Commitments (or, on any day after
termination of the Commitments, the aggregate Commitments in effect immediately
preceding such termination) and (z) the aggregate Commitments (as defined under
the 364-Day Credit Agreement) (or, on any day after termination of the
Commitments (as defined under the 364-Day Credit Agreement), the aggregate
Commitments (as defined under the 364-Day Credit Agreement) in effect
immediately preceding such termination).
"Withdrawal Liability" shall mean 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. Terms Generally. The definitions in Section 1.01 shall apply
equally to both 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". All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, (a) any reference to this Agreement shall mean this Agreement
as amended, restated, supplemented or otherwise modified from time to time and
(b) all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time; provided, however, that
for purposes of determining compliance with the covenants contained in Article
VII, all
15
accounting terms herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with GAAP as in effect on the date of this
Agreement and applied on a basis consistent with the application used in the
financial statements referred to in Section 4.05.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Revolving Loans to the Borrower, at any time
and from time to time on or after the Closing Date, and until the earlier of the
Maturity Date and the termination of the Commitment of such Lender in accordance
with the terms hereof, in an aggregate principal amount at any time outstanding
that will not result in (a)(i) such Lender's Revolving Credit Exposure exceeding
(ii) such Lender's Commitment minus, until the Existing Credit Agreement is
terminated in accordance with Section 6.10, such Lender's pro rata share of the
Total Commitments (as defined under the Existing Credit Agreement) under the
Existing Credit Agreement based upon its Commitment hereunder or (b)(i) the
aggregate amount of outstanding Loans and L/C Obligations exceeding (ii) the
Total Commitment minus, until the Existing Credit Agreement is terminated in
accordance with Section 6.10, the Total Commitment (as defined under the
Existing Credit Agreement) under the Existing Credit Agreement. Within the
limits set forth in the preceding sentence, the Borrower may borrow, pay or
prepay and reborrow Revolving Loans on or after the Closing Date and prior to
the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. Loans. (a) Each Revolving Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments; provided, however, that the failure of any Lender
to make any Loan shall not in itself relieve any other Lender of its obligation
to lend hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.03. The Loans comprising any
Borrowing shall be in an aggregate principal amount that is (i) an integral
multiple of $1,000,000 and not less than $10,000,000 or (ii) equal to the
remaining available balance of the Total Commitment.
(b) Subject to Sections 2.09 and 2.14, each Competitive Borrowing shall be
comprised entirely of Eurodollar Competitive Loans or Fixed Rate Loans, and each
Revolving Credit Borrowing shall be comprised entirely of ABR Loans or
Eurodollar Loans as the Borrower may request pursuant to Section 2.03 or 2.04,
as applicable. Each Lender may at its option 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.
Borrowings of more than one Type may be outstanding at the same time; provided,
however, that the Borrower shall not be entitled to request any Borrowing that,
if made, would result in more than 15 Eurodollar Borrowings outstanding
hereunder at any time. For purposes of the foregoing, Borrowings having
different Interest Periods, regardless of whether they commence on the same
date, shall be considered separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds to such
account in New York City as the Administrative Agent may designate not later
than 11:00 a.m., New York City time, and the Administrative Agent shall by 12:00
(noon), New York City time, credit the amounts so received to an account with
the Administrative Agent designated by the Borrower in the applicable Borrowing
Request
16
or Competitive Bid Request, which account must be in the name of the Borrower
or, if a Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received to the
respective Lenders.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay to the Administrative Agent within one Business Day of demand
therefor such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of the Borrower,
the interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error). If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(e) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request any Borrowing if the Interest Period requested
with respect thereto would end after the Maturity Date.
SECTION 2.03. Competitive Bid Procedure. (a) In order to request
Competitive Bids, the Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request (i) in the case of
a Eurodollar Competitive Borrowing, not later than 10:00 a.m., New York City
time, four Business Days before the proposed date of such Borrowing and (ii) in
the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City
time, one Business Day before the proposed date of such Borrowing. A Competitive
Bid Request shall not be made within five Business Days after the date of any
previous Competitive Bid Request. No ABR Loan shall be requested in, or made
pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not
conform substantially to the format of Exhibit D-1 may be rejected by the
Administrative Agent and the Administrative Agent shall notify the Borrower of
such rejection as promptly as practicable. Each Competitive Bid Request shall
refer to this Agreement and specify (i) whether the Borrowing being requested is
to be a Eurodollar Competitive Borrowing or a Fixed Rate Borrowing; (ii) the
date of such Borrowing (which shall be a Business Day); (iii) the number and the
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of Section 2.02(c)); (iv) the
aggregate principal amount of such Borrowing, which shall be a minimum of
$10,000,000 and an integral multiple of $1,000,000 and not greater than the
Total Commitment then available; and (v) the Interest Period with respect
thereto (which may not end after the Maturity Date. Promptly after its receipt
of a Competitive Bid Request that is not rejected, the Administrative Agent
shall by telecopy in the form set forth in Exhibit D-2 invite the Lenders to bid
to make Competitive Loans pursuant to the Competitive Bid Request.
(b) Each Lender may make one or more Competitive Bids to the Borrower
responsive to a Competitive Bid Request. Each Competitive Bid by a Lender must
be received by the Administrative Agent by telecopy in the form of Exhibit D-3,
(i) 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 (ii) 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
17
conform substantially to the format of Exhibit D-3 may be rejected by the
Administrative Agent, and the Administrative Agent shall notify the applicable
Lender as promptly as practicable. Each Competitive Bid shall refer to this
Agreement and specify (x) 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, (y) the
Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan
or Loans and (z) the Interest Period applicable to such Loan or Loans 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 of each Competitive Loan in
respect of which a Competitive Bid shall have been made and the identity of the
Lender that shall have made each bid.
(d) The Borrower may, subject only to the provisions of this paragraph (d),
accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject each Competitive Bid, (x) 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 (y) 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, however, that
(i) the failure of the Borrower to give such notice shall be deemed to be a
rejection of each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower has
decided to reject a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by the Borrower shall not
exceed (but may be less than) the principal amount specified in the Competitive
Bid Request, (iv) if the Borrower shall accept a Competitive Bid or Bids made at
a particular Competitive Bid Rate but the amount of such Competitive Bid or Bids
would cause the total amount to be accepted by the Borrower to exceed the amount
specified in the Competitive Bid Request, then the Borrower shall accept a
portion of such Competitive Bid or Bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids so accepted, 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 Bid and (v) except 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, however, 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 (d) 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, in
what amount and at what Competitive Bid Rate), and each successful bidder will
thereupon become bound, upon the terms and subject to the 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) above.
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SECTION 2.04. Borrowing Procedure. In order to request a Borrowing (other
than a Competitive Borrowing, as to which this Section 2.04 shall not apply),
the Borrower shall hand deliver or telecopy to the Administrative Agent a duly
completed Borrowing Request (a) in the case of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before a proposed
Borrowing and (b) in the case of an ABR Borrowing, not later than 10:00 a.m.,
New York City time, on the day of a proposed Borrowing. Each Borrowing Request
shall be irrevocable, signed by or on behalf of the Borrower, and shall specify
the following information: (i) whether the Borrowing then being requested is to
be a Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing
(which shall be a Business Day); (iii) the number and location of the account to
which funds are to be disbursed (which shall be an account that complies with
the requirements of Section 2.02(c)); (iv) the amount of such Borrowing; and (v)
if such Borrowing is to be a Eurodollar Borrowing, the Interest Period with
respect thereto; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply
with the requirements set forth in Section 2.02. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be an ABR Borrowing. If no Interest Period with respect to any Eurodollar
Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the Lenders of any notice given pursuant to this
Section 2.04 (and the contents thereof), and of each Lender's portion of the
requested Borrowing.
SECTION 2.05. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby
agrees that the outstanding principal balance of each Revolving Loan shall be
payable on the Maturity Date and the outstanding principal balance of each
Competitive Loan shall be payable on the last day of the Interest Period
applicable thereto. Each Loan shall bear interest from and including the date of
such Loan on the outstanding principal balance thereof as set forth in Section
2.07.
(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 from time to time, including the
amounts of principal and interest payable and paid by such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the 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 from the Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs (b)
and (c) of this Section 2.05 shall be prima facie evidence of the existence and
amounts of the obligations therein recorded; provided, however, 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 obligations of the Borrower to repay
the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the event any
Lender shall request and receive a promissory note payable to such Lender and
its registered assigns, the interests represented by such note shall at all
times (including after any assignment of all or part of such interests pursuant
to Section 11.04) be represented by one or more promissory notes payable to the
payee named therein or its registered assigns.
SECTION 2.06. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a facility fee (a "Facility Fee") for the
period from and including the Closing Date to the later of (i) the Maturity Date
and (ii) the date the Commitments have been terminated and the
19
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under this Agreement shall have been paid in full, computed at
the Applicable Percentage on the average daily amount of the Commitments
(whether used or unused) or, after the Maturity Date or after the Commitments
have been otherwise terminated hereunder, the average daily amount of the Loans
and L/C Obligations outstanding, of such Lender during the period for which
payment is made, payable quarterly in arrears on the last day of each March,
June, September and December and on the later of (i) the Maturity Date and (ii)
the date the Commitments have been terminated and the principal of and interest
on each Loan, all Fees and all other expenses or amounts payable under this
Agreement shall have been paid in full, commencing on the first of such dates to
occur after the date hereof. All Facility Fees shall be computed on the basis of
the actual number of days elapsed in a year of 360 days.
(b) The Borrower agrees to pay to the Administrative Agent for the ratable
account of each Lender, a utilization fee (a "Utilization Fee") at a rate per
annum equal to 0.125% for each Excess Utilization Day during the period for
which payment is made on the outstanding Loans of such Lender on such Excess
Utilization Day. Such Utilization Fees shall be payable quarterly in arrears on
the last day of each March, June, September and December and on the later of (i)
the Maturity Date and (ii) the date the Commitments have been terminated and the
principal of and interest on each Loan, all Fees and all other expenses or
amounts payable under this Agreement shall have been paid in full, commencing on
the first of such dates to occur after the Closing Date.
(c) The Borrower agrees to pay to each of the Agents or their Affiliates,
for their own account, the fees set forth in the Fee Letter at the times and in
the amounts specified therein (the "Agents' Fees").
(d) All Fees shall be paid on the dates due, in immediately available
funds. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions of Section
2.08, the Loans comprising each ABR Borrowing shall bear interest (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when the Alternate Base Rate is determined by reference to
the Prime Rate and over a year of 360 days at all other times) at a rate per
annum equal to the Alternate Base Rate plus the Applicable Percentage in effect
from time to time.
(b) Subject to the provisions of Section 2.08, the Loans comprising each
Eurodollar Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days) at a rate per annum equal to (i)
in the case of each Revolving Loan, the Eurodollar Rate for the Interest Period
in effect for such Borrowing plus the Applicable Percentage in effect from time
to time and (ii) in the case of each Competitive Loan, the Eurodollar Rate for
the Interest Period in effect for such Borrowing plus the Margin offered by the
Lender making such Loan and accepted by the Borrower pursuant to Section 2.03.
(c) Subject to the provisions of Section 2.08, each Fixed Rate Loan shall
bear interest (computed on the basis of the actual number of days elapsed over a
year of 360 days) at a rate per annum equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03.
(d) Interest on each Loan shall be payable on the Interest Payment Dates
applicable to such Loan except as otherwise provided in this Agreement. Any
change in the interest rate on a Loan resulting from a change in the Alternate
Base Rate or the Eurocurrency Reserve Requirements shall become effective as of
the opening of business on the day on which such change becomes effective. The
applicable Alternate Base Rate or Eurodollar Rate for each Interest Period or
day within an Interest
20
Period, as the case may be, shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.
SECTION 2.08. Default Interest. If the Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, by acceleration or otherwise, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such defaulted
amount to but excluding the date of actual payment (after as well as before
judgment) (a) in the case of overdue principal, at the rate otherwise applicable
to such Loan pursuant to Section 2.07 plus 2.00% per annum and (b) in all other
cases, at a rate per annum (computed on the basis of the actual number of days
elapsed over a year of 365 or 366 days, as the case may be, when determined by
reference to the Prime Rate and over a year of 360 days at all other times)
equal to the sum of the Alternate Base Rate plus 2.00%.
SECTION 2.09. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined that (a) Dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or (b) the rates at which such Dollar deposits are being offered will
not adequately and fairly reflect the cost to Lenders having Commitments
representing at least 20% of the Total Commitment of making or maintaining
Eurodollar Loans during such Interest Period, or (c) reasonable means do not
exist for ascertaining the Eurodollar Rate, the Administrative Agent shall, as
soon as practicable thereafter, give written or telecopy notice of such
determination to the Borrower and the Lenders. In the event of any such
determination (other than any such determination pursuant to clause (b) of the
preceding sentence, to the extent the circumstances giving rise to such
determination would also give Lenders the right to demand additional amounts
pursuant to Section 2.13), until the Administrative Agent shall have advised the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any request by the Borrower for a Eurodollar Revolving Credit
Borrowing pursuant to Section 2.04 shall be deemed to be a request for an ABR
Borrowing and (ii) any request by the Borrower for a Eurodollar Competitive
Borrowing pursuant to Section 2.03 shall be of no force and effect and shall be
denied by the Administrative Agent. Each determination by the Administrative
Agent hereunder shall be conclusive absent manifest error.
SECTION 2.10. Termination and Reduction of Commitments. (a) The Commitments
shall automatically terminate on the Maturity Date.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Commitments; provided, however, that (i) each partial reduction of the
Commitments shall be in an integral multiple of $1,000,000 and in a minimum
amount of $10,000,000 and (ii) the Total Commitment shall not be reduced to an
amount that is less than the sum of the Aggregate Revolving Credit Exposure and
the aggregate outstanding principal amount of the Competitive Loans at the time.
(c) Each reduction in the Commitments hereunder shall be made ratably among
the Lenders in accordance with their respective Commitments. The Borrower shall
pay to the Administrative Agent for the account of the applicable Lenders, on
the date of each termination or reduction, the Facility Fees on the amount of
the Commitments so terminated or reduced accrued to but excluding the date of
such termination or reduction.
SECTION 2.11. Conversion and Continuation of Revolving Credit Borrowings.
The Borrower shall have the right at any time upon prior irrevocable notice to
the Administrative Agent (a) not later than
21
10:00 a.m., New York City time, on the day of conversion, to convert any
Eurodollar Borrowing into an ABR Borrowing, (b) not later than 10:00 a.m., New
York City time, three Business Days prior to conversion or continuation, to
convert any ABR Borrowing into a Eurodollar Borrowing or to continue any
Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest
Period, and (c) not later than 10:00 a.m., New York City time, three Business
Days prior to conversion, to convert the Interest Period with respect to any
Eurodollar Borrowing to another permissible Interest Period, subject in each
case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Borrowing;
(ii) if less than all the outstanding principal amount of any Borrowing
shall be converted or continued, then each resulting Borrowing shall
satisfy the limitations specified in Sections 2.02(a) and 2.02(b) regarding
the principal amount and maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender by recording for the
account of such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being
converted by an equivalent principal amount; accrued interest on any
Eurodollar Loan (or portion thereof) being converted shall be paid by the
Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than the end
of the Interest Period applicable thereto, the Borrower shall pay, upon
demand, any amounts due to the Lenders pursuant to Section 2.15;
(v) any portion of a Borrowing maturing or required to be repaid in less
than one month may not be converted into or continued as a Eurodollar
Borrowing; and
(vi) any portion of a Eurodollar Borrowing that cannot be converted into or
continued as a Eurodollar Borrowing by reason of the immediately preceding
clause shall be automatically converted at the end of the Interest Period
in effect for such Borrowing into an ABR Borrowing.
Each notice pursuant to this Section 2.11 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Borrowing
that the Borrower requests be converted or continued, (ii) whether such
Borrowing is to be converted into or continued as a Eurodollar Borrowing or an
ABR Borrowing, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Borrowing is to be
converted into or continued as a Eurodollar Borrowing, the Interest Period with
respect thereto (which may not end after the Maturity Date). If no Interest
Period is specified in any such notice with respect to any conversion into or
continuation as a Eurodollar Borrowing, the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative Agent
shall advise the other Lenders of any notice given pursuant to this Section 2.11
and of each Lender's portion of any converted or continued Borrowing. If the
Borrower shall not have given notice in accordance with this Section 2.11 to
continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.11 to convert such
Borrowing), such Borrowing shall, at the end of the Interest Period applicable
thereto (unless repaid pursuant to the terms hereof), automatically be continued
into a new Interest Period as an ABR Borrowing. The Borrower shall not have the
right to continue or convert the Interest Period with respect to any Competitive
Borrowing pursuant to this Section 2.11.
22
SECTION 2.12. Prepayment. (a) The Borrower shall have the right at any time
and from time to time to prepay any Borrowing (other than a Competitive
Borrowing), in whole or in part, upon at least three Business Days' prior
written or telecopy notice (or telephone notice promptly confirmed by written or
telecopy notice) to the Administrative Agent before 11:00 a.m., New York City
time; provided, however, that each partial prepayment shall be in an amount that
is an integral multiple of $1,000,000 and not less than $10,000,000. The
Borrower shall not have the right to prepay any Competitive Borrowing without
the prior written consent of the relevant Lender.
(b) In the event of any termination of the Commitments, the Borrower shall
repay or prepay all its outstanding Revolving Credit Borrowings on the date of
such termination. In the event of any partial reduction of the Commitments, then
(i) at or prior to the effective date of such reduction, the Administrative
Agent shall notify the Borrower and the Lenders of the Aggregate Revolving
Credit Exposure and (ii) if the Aggregate Revolving Credit Exposure would exceed
the available Total Commitment after giving effect to such reduction, the
Borrower shall, on the date of such reduction, repay or prepay Revolving Credit
Borrowings in an amount sufficient to eliminate such excess.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the Borrower to prepay such Borrowing by the amount
stated therein on the date stated therein. All prepayments under this Section
2.12 shall be subject to Section 2.15 but otherwise without premium or penalty.
All prepayments of Eurodollar Loans under this Section 2.12 shall be accompanied
by accrued interest on the principal amount being prepaid to the date of
payment.
SECTION 2.13. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of this
Agreement the adoption of, or any change in, applicable law or regulation or in
the interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or not having
the force of law) shall 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 or shall impose on such Lender or
the London interbank market any other condition affecting this Agreement or
Eurodollar Loans, Fixed Rate Loans, Letter of Credit or Application made by such
Lender, and the result of any of the foregoing shall be to increase the cost to
such Lender of making or maintaining any Eurodollar Loan or Fixed Rate Loan, or
issuing or participating in any Letter of Credit or Application, or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender to be
material, then the Borrower will pay to such Lender upon demand such additional
amount or amounts as will compensate such Lender for such additional costs
incurred or reduction suffered.
(b) If any Lender shall have determined that the adoption after the date
hereof of any law, rule, regulation, agreement or guideline regarding capital
adequacy, or any change after the date hereof in any such law, rule, regulation,
agreement or guideline (whether such law, rule, regulation, agreement or
guideline has been adopted) or in the interpretation or administration thereof
by any Governmental Authority charged with the interpretation or administration
thereof, or compliance by any Lender (or any lending office of such Lender) or
any Lender's holding company with any request or directive regarding capital
adequacy (whether or not having the force of law) of any Governmental Authority
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 pursuant hereto,
or under or in respect of any Letter of Credit, to a level below that which such
Lender or such Lender's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy) by an amount deemed by such Lender to be material, then
23
from time to time the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such Lender's holding company for
any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts necessary
to compensate such Lender or its holding company (including the calculation
thereof) as specified in paragraph (a) or (b) above shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
to such Lender the amount shown as due on any such certificate delivered by it
within 10 days after its receipt of the same.
(d) Failure or delay on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital shall not constitute a waiver of such Lender's right to
demand such compensation. The protection of this Section shall be available to
each Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, agreement, guideline or other
change or condition that shall have occurred or been imposed. Notwithstanding
any other provision of this Section, no Lender shall be entitled to demand
compensation hereunder in respect of any Competitive Loan if it shall have been
aware of the event or circumstance giving rise to such demand at the time it
submitted the Competitive Bid pursuant to which such Loan was made.
SECTION 2.14. Change in Legality. (a) Notwithstanding any other provision
of this Agreement, if, after the date hereof, any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it unlawful
for any Lender to make or maintain any Eurodollar Loan or to give effect to its
obligations as contemplated hereby with respect to any Eurodollar Loan, then, by
written notice to the Borrower and to the Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not thereafter (for
the duration of such unlawfulness) be made by such Lender hereunder (or be
continued for additional Interest Periods and ABR Loans will not thereafter
(for such duration) be converted into Eurodollar Loans), whereupon such
Lender shall not submit a Competitive Bid in response to a request for a
Eurodollar Competitive Loan and any request for a Eurodollar Borrowing (or
to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a
Eurodollar Borrowing for an additional Interest Period) shall, as to such
Lender only, be deemed a request for an ABR Loan unless such declaration
shall be subsequently withdrawn (or a request to continue an ABR Loan as
such for an additional Interest Period or to convert a Eurodollar Loan into
an ABR Loan, as the case may be); and
(ii) such Lender may require that all outstanding Eurodollar Loans made by
it be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date of
such notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice to the Borrower by any
Lender shall be effective as to each Eurodollar Loan made by such Lender, if
lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
24
SECTION 2.15. Indemnity. The Borrower shall indemnify each Lender against
any loss or expense that such Lender may sustain or incur as a consequence of
any event, other than a default by such Lender in the performance of its
obligations hereunder, that results in (i) such Lender receiving or being deemed
to receive any amount on account of the principal of any Fixed Rate Loan or
Eurodollar Loan prior to the end of the Interest Period in effect therefor, (ii)
the conversion of any Eurodollar Loan to an ABR Loan, or the conversion of the
Interest Period with respect to any Eurodollar Loan, in each case prior to the
end of the Interest Period in effect therefor or (iii) any Fixed Rate Loan or
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be
made pursuant to a conversion or continuation under Section 2.11) not being made
after notice of such Loan shall have been given by the Borrower hereunder (any
of the events referred to in this sentence being called a "Breakage Event"). In
the case of any Breakage Event, such loss shall include an amount equal to the
excess, as reasonably determined by such Lender, of (i) its cost of obtaining
funds for the Eurodollar Loan or Fixed Rate Loan that is the subject of such
Breakage Event for the period from the date of such Breakage Event to the last
day of the Interest Period in effect (or that would have been in effect) for
such Loan over (ii) the amount of interest likely to be realized by such Lender
in redeploying the funds released or not utilized by reason of such Breakage
Event for such period. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section 2.15
shall be delivered to the Borrower and shall be conclusive absent manifest
error.
SECTION 2.16. Pro Rata Treatment. Except as provided in the two succeeding
sentences with respect to Competitive Borrowings and as required under Section
2.14, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Loans, each payment of the Facility Fees, each
reduction of the Commitments and each continuation or conversion of any
Borrowing to a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Loans). Each payment of principal of any
Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders that shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole Dollar
amount.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Revolving Loan or Loans as
a result of which the unpaid principal portion of its Revolving Loans shall be
proportionately less than the unpaid principal portion of the Revolving Loans of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Revolving Loans of such other Lender,
so that the aggregate unpaid principal amount of the Revolving Loans and
participations in Revolving Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Revolving Loans then
outstanding as the principal amount of its Revolving Loans prior to such
exercise of banker's lien, setoff or counterclaim or other event was to the
principal amount of all
25
Revolving Loans outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that, if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in a Revolving Loan deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by the Borrower to such Lender by reason thereof as fully
as if such Lender had made a Revolving Loan directly to the Borrower in the
amount of such participation.
SECTION 2.18. Payments. (a) The Borrower shall make each payment (including
principal of or interest on any Borrowing or any Fees or other amounts)
hereunder not later than 12:00 (noon), New York City time, on the date when due
in immediately available Dollars, without defense, setoff or counterclaim. Each
such payment shall be made to the Administrative Agent at its offices at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.19. Taxes. (a) Any and all payments by the Borrower hereunder
shall be made, in accordance with Section 2.18, free and clear of and without
deduction for any and all current or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding (i)
income taxes imposed on the net income of the Administrative Agent or any Lender
(or any transferee or assignee thereof, including a participation holder (any
such entity a "Transferee")) and (ii) franchise taxes imposed on the net income
of the Administrative Agent or any Lender (or Transferee), in each case by the
jurisdiction under the laws of which the Administrative Agent or such Lender (or
Transferee) is organized or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, being called "Taxes"). If the
Borrower shall be required to deduct any Taxes from or in respect of any sum
payable hereunder to the Administrative Agent or any Lender (or any Transferee),
(i) the sum payable shall be increased by the amount (an "additional amount")
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.19) the
Administrative Agent or such Lender (or Transferee), as the case may be, shall
receive 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 agrees to pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent and each Lender
(or Transferee) for the full amount of Taxes and Other Taxes paid by the
Administrative Agent or such Lender (or Transferee), as the case may be, and any
liability (including penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by the Administrative Agent or a Lender (or
Transferee), or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive
26
and binding for all purposes. Such indemnification shall be made within 30 days
after the date the Administrative Agent or any Lender (or Transferee), as the
case may be, makes written demand therefor.
(d) If the Administrative Agent or a Lender (or Transferee) receives a
refund in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.19, it shall within 30 days from
the date of such receipt pay over such refund to the Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.19 with respect to the Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender (or Transferee) and without interest (other than interest paid by
the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower, upon the request of the Administrative Agent or such
Lender (or Transferee), shall repay the amount paid over to the Borrower (plus
penalties, interest or other charges) to the Administrative Agent or such Lender
(or Transferee) in the event the Administrative Agent or such Lender (or
Transferee) is required to repay such refund to such Governmental Authority.
(e) As soon as practicable after the date of any payment of Taxes or Other
Taxes by the Borrower to the relevant Governmental Authority, the Borrower will
deliver to the Administrative Agent, at its address referred to in Section
11.01, the original or a certified copy of a receipt issued by such Governmental
Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.19 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(g) Each Lender (or Transferee) that is organized under the laws of a
jurisdiction other than the United States, any State thereof or the District of
Columbia (a "Non-U.S. Lender") shall deliver to each of the Borrower and the
Administrative Agent two copies of either United States Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8BEN, a certificate representing that such Non-U.S. Lender is
not a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Borrower under
this Agreement. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.19(g), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.19(g) that
such Non-U.S. Lender is not legally able to deliver.
(h) The Borrower shall not be required to indemnify any Non-U.S. Lender or
to pay any additional amounts to any Non-U.S. Lender, in respect of United
States Federal withholding tax pursuant to paragraph (a) or (c) above to the
extent that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed under applicable laws and regulations on the
date such Non-U.S. Lender became a party to this Agreement (or, in the case of a
Transferee that is a participation
27
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; provided, however,
that this paragraph (h) shall not apply (x) to any Transferee or New Lending
Office that becomes a Transferee or New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of the
Borrower and (y) to the extent the indemnity payment or additional amounts any
Transferee, or any Lender (or Transferee), acting through a New Lending Office,
would be entitled to receive (without regard to this paragraph (h)) do not
exceed the indemnity payment or additional amounts that the person making the
assignment, participation or transfer to such Transferee, or Lender (or
Transferee) making the designation of such New Lending Office, would have been
entitled to receive in the absence of such assignment, participation, transfer
or designation or (ii) the obligation to pay such additional amounts would not
have arisen but for a failure by such Non-U.S. Lender to comply with the
provisions of paragraph (g) above.
(i) Nothing contained in this Section 2.19 shall require any Lender (or any
Transferee) or the Administrative Agent to make available any of its tax returns
(or any other information that it deems to be confidential or proprietary).
SECTION 2.20. Assignment of Commitments Under Certain Circumstances; Duty
to Mitigate. (a) In the event (i) any Lender delivers a certificate requesting
compensation pursuant to Section 2.13, (ii) any Lender delivers a notice
described in Section 2.14 or (iii) the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority on account of any
Lender pursuant to Section 2.19, the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such
Lender to transfer and assign, without recourse (in accordance with and subject
to the restrictions contained in Section 11.04), all of its interests, rights
and obligations under this Agreement to an assignee which shall assume such
assigned obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that (x) such assignment shall not conflict with any
law, rule or regulation or order of any court or other Governmental Authority
having jurisdiction, (y) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not unreasonably be
withheld, and (z) the Borrower or such assignee shall have paid to the affected
Lender in immediately available funds an amount equal to the sum of the
principal of and interest accrued to the date of such payment on the outstanding
Loans of such Lender plus all Fees and other amounts accrued for the account of
such Lender hereunder (including any amounts under Section 2.13 and Section
2.15); provided further that if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's claim for compensation
under Section 2.13 or notice under Section 2.14 or the amounts paid pursuant to
Section 2.19, as the case may be, cease to cause such Lender to suffer increased
costs or reductions in amounts received or receivable or reduction in return on
capital, or cease to have the consequences specified in Section 2.14, or cease
to result in amounts being payable under Section 2.19, as the case may be
(including as a result of any action taken by such Lender pursuant to paragraph
(b) below), or if such Lender shall waive its right to claim further
compensation under Section 2.13 in respect of such circumstances or event or
shall withdraw its notice under Section 2.14 or shall waive its right to further
payments under Section 2.19 in respect of such circumstances or event, as the
case may be, then such Lender shall not thereafter be required to make any such
transfer and assignment hereunder.
(b) If (i) any Lender shall request compensation under Section 2.13, (ii)
any Lender delivers a notice described in Section 2.14 or (iii) the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority on account of any Lender, pursuant to Section 2.19, then, such Lender
shall use reasonable efforts (which shall not require such Lender to incur an
unreimbursed loss or unreimbursed cost or expense or otherwise take any action
inconsistent with its internal policies or legal or regulatory restrictions or
suffer any disadvantage or burden deemed by it to be significant) (x) to file
any certificate or document reasonably requested in writing by the Borrower or
(y) to assign its rights and
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delegate and transfer its obligations hereunder to another of its offices,
branches or affiliates, if such filing or assignment would reduce its claims for
compensation under Section 2.13 or enable it to withdraw its notice pursuant to
Section 2.14 or would reduce amounts payable pursuant to Section 2.19, as the
case may be, in the future. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such filing,
assignment, delegation and transfer.
ARTICLE III LETTERS OF CREDIT
SECTION 3.01. L/C Commitment(a) . (a) Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.04(a), agrees to issue letters of credit ("Letters of
Credit") for the account of the Borrower on any Business Day until the date that
is five Business Days prior to the Maturity Date in such form as may be approved
from time to time by such Issuing Lender; provided that no Issuing Lender shall
have any obligation to (and no Issuing Lender shall knowingly) issue any Letter
of Credit if, after giving effect to such issuance, (i) the L/C Obligations
would exceed the L/C Commitment, (ii) the aggregate amount of the outstanding
Loans and L/C Obligations would exceed the Total Commitment minus, until the
Existing Credit Agreement is terminated in accordance with Section 6.10, the
Total Commitment (as defined under the Existing Credit Agreement) under the
Existing Credit Agreement or (iii) the Revolving Credit Exposure of any Lender
would exceed such Lender's Commitment minus, until the Existing Credit Agreement
is terminated in accordance with Section 6.10, such Lender's pro rata share of
the Total Commitments (as defined under the Existing Credit Agreement) under the
Existing Credit Agreement based upon its Commitment hereunder. If the relevant
Issuing Lender issues a Letter of Credit at a time when such issuance is
prohibited by the immediately preceding sentence and such Issuing Lender at the
time of issuance knows such issuance is so prohibited, no Lender shall have any
obligation to participate in such Letter of Credit. Each Letter of Credit shall
(i) be denominated in Dollars, (ii) have a face amount of at least $5,000,000
(unless otherwise agreed by the relevant Issuing Lender) and (iii) expire no
later than the date that is five Business Days prior to the Maturity Date. Any
Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods (which shall in no event extend beyond the date
referred to in clause (iii) immediately above).
(b) No Issuing Lender shall at any time be obligated to issue any Letter of
Credit if such issuance would conflict with, or cause such Issuing Lender or any
L/C Participant to exceed any limits imposed by, any organizational documents of
the relevant Issuing Lender or any law or regulation applicable to such Issuing
Lender.
SECTION 3.02. Procedure for Issuance or Amendment of Letter of Credit. The
Borrower may from time to time request that an Issuing Lender issue or amend a
Letter of Credit by delivering to such Issuing Lender at its address for notices
specified herein an Application therefor, completed to the reasonable
satisfaction of such Issuing Lender, and such other certificates, documents and
other papers and information as such Issuing Lender may reasonably request. Upon
receipt of any Application, the relevant Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Letter of Credit requested thereby (but
in no event shall such Issuing Lender be required to issue or amend any Letter
of Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed to by such Issuing
Lender and the Borrower. The relevant Issuing Lender shall furnish a copy of
such Letter of Credit to the Borrower promptly following the issuance or
amendment thereof. The relevant Issuing Lender shall promptly furnish to the
Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount thereof).
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SECTION 3.03. Fees and Other Charges(a) . (a) The Borrower will pay a fee
(i) on the undrawn and unexpired amount of all outstanding Performance Letters
of Credit at a per annum rate equal to the L/C Fee Applicable Percentage for
Performance Letters of Credit and (ii) on the undrawn and unexpired amount of
all other outstanding Letters of Credit at a per annum rate equal to the L/C Fee
Applicable Percentage for other Letters of Credit, in each case, shared ratably
among the Lenders and payable quarterly in arrears on each L/C Fee Payment Date
after the issuance date. In addition, the Borrower shall pay to each Issuing
Lender for its own account a fronting fee at the rate per annum set forth in the
relevant Issuing Lender Agreement on the undrawn and unexpired amount of each
Letter of Credit issued by such Issuing Lender, payable quarterly in arrears on
each L/C Fee Payment Date after the Issuance Date.
(b) In addition to the foregoing fees, the Borrower shall pay or reimburse
each Issuing Lender for such normal and customary costs and expenses as are
incurred or charged by such Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
SECTION 3.04. L/C Participations(a) . (a) Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce each
Issuing Lender to issue Letters of Credit, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions set forth below, for such L/C Participant's
own account and risk an undivided interest equal to such L/C Participant's pro
rata share (based on its Commitment hereunder) in each Issuing Lender's
obligations and rights under and in respect of each Letter of Credit and the
amount of each draft paid by each Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit for which such Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms of
this Agreement, such L/C Participant shall pay to such Issuing Lender upon
demand at such Issuing Lender's address for notices specified herein an amount
equal to such L/C Participant's pro rata share (based on its Commitment
hereunder or, if the Commitment of such L/C Participant has been terminated in
accordance with Section VIII, such L/C Participant's Commitment immediately
preceding such termination) of the amount of such draft, or any part thereof,
that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an Issuing
Lender pursuant to Section 3.04(a) in respect of any unreimbursed portion of any
payment made by such Issuing Lender under any Letter of Credit is not paid on
the date such payment is due, but is paid to such Issuing Lender within three
Business Days after the date such payment is due, such L/C Participant shall pay
to such Issuing Lender on demand an amount equal to the product of (i) such
amount, times (ii) the daily average Federal Funds Effective Rate during the
period from and including the date such payment is required to the date on which
such payment is immediately available to such Issuing Lender, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. If any such amount required to be
paid by any L/C Participant pursuant to Section 3.04(a) is not paid to an
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, such Issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to ABR Loans. A certificate of
the relevant Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after an Issuing Lender has made payment under
any Letter of Credit and has received from any L/C Participant its pro rata
share (based on its Commitment hereunder) of such payment in accordance with
Section 3.04(a), such Issuing Lender receives any payment related to such Letter
of Credit (whether directly from the Borrower or otherwise, including proceeds
of any collateral applied thereto by such Issuing Lender), or any payment of
interest on account thereof, such
30
Issuing Lender will distribute to such L/C Participant its pro rata share (based
on its Commitment hereunder) thereof; provided, however, that in the event that
any such payment received by such Issuing Lender shall be required to be
returned by such Issuing Lender, such L/C Participant shall return to such
Issuing Lender the portion thereof previously distributed by such Issuing Lender
to it.
SECTION 3.05. Reimbursement Obligation of the Borrower. The Borrower agrees
to reimburse each Issuing Lender on the Business Day next succeeding the
Business Day on which such Issuing Lender notifies the Borrower of the date and
amount of a draft presented under any Letter of Credit and paid by such Issuing
Lender for the amount of (a) such draft so paid and (b) any taxes, fees, charges
or other costs or expenses incurred by such Issuing Lender in connection with
such payment. Each such payment shall be made to the relevant Issuing Lender at
its address for notices referred to herein in Dollars and in immediately
available funds, without set-off, counterclaim or other deduction. Interest
shall be payable on any such amounts from the date on which the relevant draft
is paid until payment in full at the rate set forth in (i) until the Business
Day next succeeding the date of the relevant notice, Section 2.07(a) and (ii)
thereafter, Section 2.08.
SECTION 3.06. Obligations Absolute(a) . (a) The Borrower's obligations
under this Section 3 shall be absolute and unconditional under any and all
circumstances including without limitation the following:
(i) any lack of validity or enforceability of such Letter of Credit, this
Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or any
transferee of such Letter of Credit (or any person for whom any such
beneficiary or any such transferee may be acting), (to the extent permitted
by applicable law) the Issuing Lender or any other person, whether in
connection with this Agreement, the transactions contemplated hereby or by
such Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(iii) any draft, demand, certificate or other document presented under such
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect (provided that the relevant Issuing Lender has acted substantially
in accordance with the terms of such Letter of Credit); or any loss or
delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit, in each case, in the absence of
gross negligence or willful misconduct of the relevant Issuing Lender;
(iv) any payment in good faith by the Issuing Lender under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply (but materially complies) with the terms of such Letter of
Credit; or any payment made by the Issuing Lender under such Letter of
Credit to any person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection
with any proceeding under any bankruptcy, insolvency, receivership or
similar law, in each case, in the absence of gross negligence or willful
misconduct of the relevant Issuing Lender; or
(v) any other circumstance or happening whatsoever, whether or not similar
to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the
Borrower, in each case, in the absence of gross negligence or willful
misconduct of the relevant Issuing Lender.
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(b) No Issuing Lender shall be liable for any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found to have resulted from the gross negligence or willful misconduct
of the relevant Issuing Lender. The Borrower agrees that any action taken or
omitted by an Issuing Lender under or in connection with any Letter of Credit or
the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of any Issuing Lender to the
Borrower.
SECTION 3.07. Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the relevant Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The responsibility
of the relevant Issuing Lender to the Borrower in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity in all
material respects with such Letter of Credit.
SECTION 3.08. Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Article III, the provisions of this Article III shall apply.
ARTICLE IV
Representations And Warranties
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, the Borrower represents and warrants to the Administrative Agent and
each of the Lenders that:
SECTION 4.01. Organization; Powers. The Borrower and each of the
Significant Subsidiaries (a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted and (c)
is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect. The
Borrower has the corporate power and authority to execute, deliver and perform
its obligations under this Agreement and to borrow hereunder. Schedule 4.01 sets
forth each Significant Subsidiary of the Borrower in existence on the Closing
Date.
SECTION 4.02. Authorization. The execution, delivery and performance by the
Borrower of this Agreement, the issuance of Letters of Credit, and the
borrowings hereunder (collectively, the "Transactions") (a) have been duly
authorized by all requisite corporate and, if required, stockholder action and
(b) will not (i) violate (A) any provision of law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents or by-laws of the Borrower or any Significant Subsidiary, (B) any
order of any Governmental Authority or (C) any material provision of any
material indenture, agreement or other instrument to which the Borrower or any
Significant Subsidiary is a party or by which any of them or any of their
property is or may be bound, (ii) be in material conflict with, result in a
material breach of or constitute (alone or with notice or lapse of time or both)
a material default under, or give rise to any right to accelerate or to require
the prepayment, repurchase or redemption of any obligation under any such
material indenture, agreement or other instrument or
32
(iii) result in the creation or imposition of any Lien upon or with respect to
any property or assets now owned or hereafter acquired by the Borrower or any
Significant Subsidiary.
SECTION 4.03. Enforceability. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation
of the Borrower enforceable against the Borrower in accordance with its terms.
SECTION 4.04. Governmental Approvals. No action, consent or approval of,
registration or filing with or any other action by any Governmental Authority is
or will be required in connection with the Transactions, except those which have
been made or obtained.
SECTION 4.05. Financial Statements. The Borrower has heretofore furnished
to the Lenders the consolidated balance sheet, statement of income and statement
of cash flows of the Borrower and its Subsidiaries as of and for the fiscal year
ended December 31, 2000, audited by and accompanied by the opinion of
PricewaterhouseCoopers LLP, independent public accountants. Such financial
statements present fairly the financial condition and results of operations of
the Borrower and its Subsidiaries as of such date and for such period and were
prepared in accordance with GAAP applied on a consistent basis. The unaudited
consolidated balance sheet of the Borrower and its Subsidiaries as at April 1,
2001, July 1, 2001 and September 30, 2001, and the related unaudited
consolidated statements of income and cash flows for the three-month periods
ended on such dates, present fairly the consolidated financial condition of the
Borrower and its Subsidiaries as at such dates, and the consolidated results of
its operations and its consolidated cash flows for the three-month periods then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as disclosed therein). Such financial statements and the notes
thereto, and Schedule 4.05, when taken together, disclose all material
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the date thereof.
SECTION 4.06. No Material Adverse Change. There has been no material
adverse change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and the Subsidiaries, taken as a whole, since
December 31, 2000.
SECTION 4.07. Litigation; Compliance with Laws. (a) Except as set forth on
Schedule 4.07, there are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
Subsidiary or any business, property or rights of any such person (i) that
involve this Agreement or the Transactions or (ii) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) None of the Borrower or any of the Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their material properties and assets as currently
conducted violate, any law, rule or regulation, or is in default with respect to
any judgment, writ, injunction, decree or order of any Governmental Authority
(including any of the foregoing relating to the environment), where such
violation or default could reasonably be expected to result in a Material
Adverse Effect.
SECTION 4.08. Federal Reserve Regulations. (a) Neither the Borrower nor any
of the Subsidiaries is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of buying or
carrying Margin Stock.
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(b) No part of the proceeds of any Loan will be used, whether directly or
indirectly, and whether immediately, incidentally or ultimately for any purpose
that entails a violation of, or that is inconsistent with, the provisions of the
Regulations of the Board, including Regulation U or X. Margin Stocks do not
constitute 25% or more of the fair market value of the assets of the Borrower
and the Subsidiaries subject to the restrictions of Section 7.01.
SECTION 4.09. Investment Company Act; Public Utility Holding Company Act.
Neither the Borrower nor any Subsidiary is (a) an "investment company", or a
company "controlled" by an "investment company", as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
SECTION 4.10. Tax Returns. Each of the Borrower and the Subsidiaries has
filed or caused to be filed all Federal and all material state, local and
foreign tax returns or materials required to have been filed by it and has paid
or caused to be paid all taxes shown to be due and payable by it on such returns
and all assessments received by it, except taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiaries, as applicable, shall have set aside on its books adequate reserves
in accordance with GAAP.
SECTION 4.11. No Material Misstatements. Neither (a) the Confidential
Information Memorandum nor (b) any other information, report, financial
statement, exhibit or schedule furnished in writing by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or included herein or delivered pursuant hereto
contained, contains or will contain any material misstatement of fact or
omitted, omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were, are
or will be made, not misleading; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection, the Borrower represents only that it acted
in good faith and utilized reasonable assumptions and due care in the
preparation of such information, report, financial statement, exhibit or
schedule.
SECTION 4.12. Employee Benefit Plans. Each of the Borrower and its ERISA
Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect. The present
value of all benefit liabilities under all Plans (based on those assumptions
used to fund each such Plan) did not, as of the last annual valuation date
applicable thereto before the Closing Date, exceed the fair market value of the
assets of all Plans as of such date, and the present value of all benefit
liabilities of all underfunded Plans (based on those assumptions used to fund
each such Plan) did not, as of the last annual valuation dates applicable
thereto before the Closing Date, exceed by more than $280 million the fair
market value of the assets of all such underfunded Plans as of such dates.
SECTION 4.13. No Default. Neither the Borrower nor any Subsidiary is in
default under or with respect to any of its Contractual Obligations in any
respect that has had or would reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
SECTION 4.14. Ownership of Property; Liens; Insurance. The Borrower and
each of its Significant Subsidiaries has title in fee simple to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by Section 7.01. The
Borrower and each of its Subsidiaries maintains with financially sound and
reputable insurance companies insurance on all its
34
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business, provided that nothing in this Section 4.14 shall
preclude the Borrower or any Subsidiary from being self-insured (to the extent
deemed prudent by the Borrower or such Subsidiary and customary with companies
in the same or similar business).
SECTION 4.15. Intellectual Property. The Borrower and each of its
Subsidiaries owns, is licensed to use or otherwise has the right to use all
Intellectual Property necessary for the conduct of its business as currently
conducted, except where the failure of the Borrower and its Subsidiaries to have
any such rights has had or would reasonably be expected to have a Material
Adverse Effect. To the knowledge of the Borrower, no material claim that would
reasonably be expected to have a Material Adverse Effect if adversely decided,
has been asserted and is currently active and pending by any person (i) alleging
that the business of the Borrower or its Subsidiaries as currently conducted
infringes the Intellectual Property rights of a third party or (ii) challenging
or questioning the use of any Intellectual Property of the Borrower or its
Subsidiaries or the validity or effectiveness of any Intellectual Property of
the Borrower or its Subsidiaries. Except for such activities as may be subject
to authorization and consent pursuant to 28 U.S.C. Section 1498 or substantially
equivalent law or regulation, to the Borrower's knowledge, the operation of the
businesses of the Borrower and its Subsidiaries as currently conducted do not
infringe any valid and enforceable Intellectual Property rights of any third
party where a finding of such infringement would reasonably be expected to have
a Material Adverse Effect.
SECTION 4.16. Labor Matters. Except as, in the aggregate, has not had or
would not reasonably be expected to have a Material Adverse Effect: (a) there
are no strikes or other labor disputes against the Borrower or any of its
Subsidiaries pending or, to the knowledge of the Borrower, threatened; (b) hours
worked by and payment made to employees of the Borrower and each of its
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable law or regulation dealing with such matters; and (c) all
payments due from the Borrower or any of its Subsidiaries on account of employee
health and welfare insurance have been paid or accrued as a liability on the
books of the Borrower or the relevant Subsidiary, as applicable.
SECTION 4.17. Environmental Matters. Except as, in the aggregate, has not
had or would not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by the Borrower
or any Subsidiary (the "Properties") do not contain, and have not previously
----------
contained, any Materials of Environmental Concern in amounts or concentrations
or under circumstances that constitute or constituted a violation of, or could
give rise to liability under, any Environmental Law;
(b) neither the Borrower nor any Subsidiary has received or is aware of any
notice of violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the business operated by the Borrower or
any Subsidiary (the "Business"), nor does any Responsible Officer of the
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Borrower have actual knowledge or a reasonable basis to believe that any such
notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a location
that could give rise to liability under, any Environmental Law, nor have any
Materials of Environmental Concern been generated, treated, stored or disposed
of at, on or under any of the Properties in violation of, or in a manner that
could give rise to liability under, any applicable Environmental Law;
35
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of any Responsible Officer of the Borrower,
threatened, under any Environmental Law to which the Borrower or any Subsidiary
is or will be named as a party with respect to the Properties or the Business,
nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could give rise to liability under Environmental
Laws;
(f) the Properties and all operations at the Properties are in compliance,
and have in the last five years been in compliance, with all applicable
Environmental Laws, and there is no contamination at, under or about the
Properties or violation of any Environmental Law with respect to the Properties
or the Business; and
(g) neither the Borrower nor any Subsidiary has assumed any liability of
any other person under Environmental Laws.
SECTION 4.18. Solvency. The Borrower is and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
ARTICLE V
Conditions Of Effectiveness and Lending
The obligations of the Lenders to make extensions of credit (including the
initial extension of credit) hereunder are subject to the satisfaction of the
following conditions:
SECTION 5.01. All Borrowings. On the date of each extension of credit
(other than, in the case of paragraph (b) below, a Borrowing that does not
increase the aggregate principal amount of Loans outstanding of any Lender):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or 2.04, as applicable, or issuance
of a Letter of Credit as required by Article III, as the case may be.
(b) The representations and warranties set forth in Article IV hereof
shall be true and correct in all material respects on and as of the date of
such Borrowing or issuance of a Letter of Credit, as the case may be, with
the same effect as though made on and as of such date, except to the extent
such representations and warranties expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing or issuance of
a Letter of Credit, as the case may be, no Event of Default or Default
shall have occurred and be continuing.
Each Borrowing by the Borrower and issuance of a Letter of Credit on behalf
of the Borrower shall be deemed to constitute a representation and warranty by
the Borrower on the date of such Borrowing or issuance as to the matters
specified in paragraphs (b) (except as aforesaid) and (c) of this Section 5.01.
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SECTION 5.02. Effectiveness. On the date of effectiveness (which may or may
not be the date of the initial extension of credit):
(a) Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by the Administrative Agent, the
Borrower, each Guarantor and each person listed on Schedule 2.01.
(b) Legal Opinions. The Administrative Agent shall have received, on
behalf of itself and the Lenders and the Agents, the favorable written
opinions of (i) Xxxx X. Xxxxxxx, Senior Vice President, Secretary and
General Counsel of the Borrower and other appropriate in-house counsel with
respect to the Guarantors and (ii) Xxxxxxx Xxxx LLP, special counsel for
the Borrower, substantially to the effect set forth in Exhibits E and F,
respectively, each (A) dated the date of the initial Borrowing, (B)
addressed to the Administrative Agent, the Lenders and the Agents, and (C)
covering such other matters relating to this Agreement and the transactions
contemplated hereby as the Administrative Agent and the Syndication Agent
may reasonably request as a result of any change in law or regulation after
the Closing Date relating to such transactions or any material change in
facts previously disclosed to the Lenders, or disclosure of facts not
previously disclosed to the Lenders, and the Borrower hereby requests such
counsel deliver such opinions.
(c) Legal Matters. All legal matters incident to this Agreement, the
Borrowings and extensions of credit hereunder shall be reasonably
satisfactory to the Lenders and to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for
the Administrative Agent and the Syndication Agent.
(d) Closing Certificates. The Administrative Agent and the Syndication
Agent shall have received (i) a copy of the certificate of incorporation,
including all amendments thereto, of the Borrower and each Guarantor, each
certified by the relevant authority of the jurisdiction of organization,
and a certificate as to the good standing of the Borrower and each
Guarantor as of a recent date, from such relevant authority; (ii) a
certificate of the Secretary or Assistant Secretary of the Borrower and
each Guarantor, each dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the by-laws of the Borrower
or the relevant Guarantor, as applicable, as in effect on the Closing Date
and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Borrower or the relevant Guarantor, as applicable, authorizing the
execution, delivery and performance of this Agreement and, in the case of
the Borrower, the borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C)
that the certificate of incorporation of the Borrower or the relevant
Guarantor, as applicable, has not been amended since the date of the last
amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above, and (D) as to the incumbency and specimen
signature of each officer executing this Agreement or any other document
delivered in connection herewith on behalf of the Borrower or the relevant
Guarantor, as applicable; (iii) a certificate of another officer of the
Borrower or the relevant Guarantor, as applicable, as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the
Lenders or Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Administrative Agent
and the Syndication Agent, may reasonably request.
(e) Financial Officer's Certificate. The Administrative Agent and the
Syndication Agent shall each have received (i)a certificate, dated the date
of the initial Borrowing and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 5.01 and (ii) a Ratio Certificate, setting forth the
37
calculations, in reasonable detail, required to determine compliance with
all covenants set forth in Sections 7.05(a) and (b) on the Closing Date and
on the date of the initial Borrowing.
(f) Fees and Expenses. The Administrative Agent and the other Agents
and their Affiliates shall have received all Fees and other amounts due and
payable on or prior to the Closing Date, including, to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by the Borrower hereunder.
(g) 364-Day Credit Agreement. The 364-Day Credit Agreement shall have
been, or shall simultaneously be, executed and delivered by the parties
thereto and shall be in full force and effect.
(h) Existing Credit Agreement. The Borrower shall have prepaid the
Loans (as defined under the Existing Credit Agreement) and permanently
reduced the amount of the Commitments (as defined under the Existing Credit
Agreement) under the Existing Credit Agreement to an aggregate amount of no
more than $140,000,000.
ARTICLE VI
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and any Letter of Credit remains outstanding
and until the Commitments have been terminated and the principal of and interest
on each Loan, all Fees and all other expenses or amounts payable under this
Agreement shall have been paid in full, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and will cause each of the
Subsidiaries to:
SECTION 6.01. Existence; Businesses and Properties. In the case of the
Borrower and the Significant Subsidiaries:
(a) do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence, rights and franchises,
except as otherwise expressly permitted under Section 7.03;
(b) comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, whether
now in effect or hereafter enacted; and at all times maintain, preserve and
protect all property material to the conduct of its business; and
(c) comply with all Contractual Obligations except to the extent that
failure to comply therewith, in the aggregate, has not had or would not
reasonably be expected to have a Material Adverse Effect.
SECTION 6.02. Insurance. Keep its insurable properties adequately insured
at all times by financially sound and reputable insurers; and maintain such
other insurance, to such extent and against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies in
the same or similar businesses, provided that nothing in this Section 6.02 shall
preclude the Borrower or any Subsidiary from being self-insured (to the extent
deemed prudent by the Borrower or such Subsidiary and customary with companies
in the same or similar business).
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SECTION 6.03. Payment of Obligations; Taxes(a) . (a) Pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as the
case may be, all its material obligations (which , with respect to payment
obligations, shall be any obligation of $50,000,000 or greater) of whatever
nature, except where the amount or validity thereof is currently being contested
in good faith by appropriate proceedings and adequate reserves with respect
thereto shall, to the extent required by GAAP, have been set aside; and
(b) Pay and discharge promptly when due all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits or
in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or any
part thereof unless and to the extent the same are being contested in good faith
by appropriate proceedings and adequate reserves with respect thereto shall, to
the extent required by GAAP, have been set aside.
SECTION 6.04. Financial Statements, Reports, etc. In the case of the
Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, a consolidated
balance sheet, statement of income and statement of cash flows showing the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries as of and for the fiscal year then ended, all
audited by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing and accompanied by an opinion
of such accountants (which shall not be qualified in any material respect)
to the effect that such consolidated financial statements fairly present
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries, as the case may be, on a consolidated basis in
accordance with GAAP;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, a consolidated balance sheet, statement of
income and statement of cash flows showing the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries as
of and for the fiscal quarter then ended and the then elapsed portion of
the fiscal year, all certified by a Financial Officer of the Borrower as
fairly presenting the financial condition and results of operations of the
Borrower, as the case may be, on a consolidated basis in accordance with
GAAP, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, (i) a Ratio Certificate and (ii) a certificate
of a Financial Officer of the Borrower certifying that no Event of Default
or Default has occurred or, if such an Event of Default or Default has
occurred, specifying the nature and extent thereof and any corrective
action taken or proposed to be taken with respect thereto;
(d) promptly, after their becoming available, copies of all financial
statements, stockholders reports and proxy statements that the Borrower
shall have sent to its stockholders generally, and copies of all
registration statements filed by the Borrower under the Securities Act of
1933, as amended (other than registration statements on Form S-8 or any
registration statement filed in connection with a dividend reinvestment
plan), and regular and periodic reports, if any, which the Borrower shall
have filed with the Securities and Exchange Commission (or any governmental
agency or agencies substituted therefor) under Section 13 or Section 15(d)
of the Securities and Exchange Act of 1934, as amended, or with any
national securities exchange (other than those on Form 11-K or any
successor form); provided, that documents required to be delivered under
this clause (d) which are made available on the internet via the XXXXX, or
any successor, system of the Securities and Exchange Commission shall be
deemed delivered; and
39
(e) promptly, from time to time, such other information regarding the
Borrower or any Significant Subsidiary (including the operations, business
affairs and financial condition of the Borrower or any Significant
Subsidiary), or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 6.05. Litigation and Other Notices. Promptly upon any Responsible
Officer of the Borrower obtaining knowledge of any of the following, furnish to
the Administrative Agent and each Lender written notice of the following:
(a) any Event of Default or Default, specifying the nature and extent
thereof and the corrective action (if any) taken or proposed to be taken
with respect thereto;
(b) the filing or commencement of, or any notice of intention of any
person to file or commence, any action, suit or proceeding, whether at law
or in equity or by or before any Governmental Authority, against the
Borrower or any Affiliate thereof that could reasonably be expected to
result in a Material Adverse Effect or materially impair the Borrower's
ability to perform its obligations under this Agreement;
(c) any change in the ratings by S&P or Xxxxx'x of the Index Debt; and
(d) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 6.06. Employee Benefits. (a) Comply in all material respects with
the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent and each Lender as soon as possible after, and in any event
within 30 days after any Responsible Officer of the Borrower or any ERISA
Affiliate knows that, any ERISA Event has occurred that, alone or together with
any other ERISA Event known to have occurred, could reasonably be expected to
result in liability of the Borrower in an aggregate amount exceeding $75,000,000
in any year, a statement of a Financial Officer of the Borrower setting forth
details as to such ERISA Event and the action, if any, that the Borrower
proposes to take with respect thereto
SECTION 6.07. Maintaining Records; Access to Properties and Inspections.
Maintain financial records in accordance with GAAP and, upon reasonable notice,
permit any representatives designated by the Administrative Agent or any Lender
to visit and inspect the financial records and the properties of the Borrower or
any Significant Subsidiary during normal business hours and to discuss the
affairs, finances and condition of the Borrower or any Significant Subsidiary
with the officers thereof and independent accountants therefor.
SECTION 6.08. Use of Proceeds. Use the proceeds of the Loans only for the
purposes set forth in the preamble to this Agreement. SECTION 6.09.
Environmental Laws. Except as, in the aggregate, has not had or would not
reasonably be expected to have a Material Adverse Effect:
(a) Comply in all material respects with, and undertake all reasonable
efforts to ensure compliance in all material respects by all tenants and
subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply in all material respects with and maintain, and ensure that all tenants
and subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
40
(b) Conduct and complete all investigations, studies, sampling and testing,
and all remedial, removal and other actions required under Environmental Laws
and comply as required in all material respects with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws.
SECTION 6.10. Termination of Existing Credit Agreement. On or before May
30, 2002, pay the Loans (as defined under the Existing Credit Agreement),
liabilities and other obligations under the Existing Credit Agreement in full
and terminate the Commitments (as defined under the Existing Credit Agreement)
thereunder.
ARTICLE VII
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and any Letter of Credit remains outstanding
and until the Commitments have been terminated and the principal of and interest
on each Loan, all Fees and all other expenses or amounts payable under this
Agreement have been paid in full, unless the Required Lenders shall otherwise
consent in writing, the Borrower will not, and will not cause or permit any of
the Subsidiaries to:
SECTION 7.01. Liens. Create, incur, assume or permit to exist any Lien on
any property or assets (including stock or other securities of any person,
including any Subsidiary) now owned or hereafter acquired by it or on any income
or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower or any of its
Subsidiaries existing on the date hereof except, in the case of the
Borrower, any such Lien securing Indebtedness for borrowed money in excess
of $5,000,000 that is not set forth in Schedule 7.01, provided that all
Liens permitted by this paragraph (a) shall secure only those obligations
which they secure on the date hereof;
(b) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary, provided that (i)
such Lien is not created in contemplation of or in connection with such
acquisition and (ii) such Lien does not apply to any other property or
assets of the Borrower or any Subsidiary;
(c) Liens for taxes not yet past due or which are being contested in
compliance with Section 6.03;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business and securing
obligations that are not due and payable or which are being contested in
compliance with Section 6.03;
(e) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(f) deposits to secure the performance of bids, trade contracts (other
than for Indebtedness), leases (other than capital leases), statutory
obligations, surety and appeal bonds, advance payment bonds, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business;
41
(g) zoning restrictions, easements, rights-of-way, restrictions on use
of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount
and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(h) Liens upon any property acquired, constructed or improved by the
Borrower or any Subsidiary which are created or incurred within 360 days of
such acquisition, construction or improvement to secure or provide for the
payment of any part of the purchase price of such property or the cost of
such construction or improvement, including carrying costs (but no other
amounts), provided that any such Lien shall not apply to any other property
of the Borrower or any Subsidiary;
(i) Liens on the property or assets of any Subsidiary in favor of the
Borrower;
(j) extensions, renewals and replacements of Liens referred to in
paragraphs (a) through (i) of this Section 7.01, provided that any such
extension, renewal or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed or replaced and that the
obligations secured by any such extension, renewal or replacement Lien
shall be in an amount not greater than the amount of the obligations
secured by the Lien extended, renewed or replaced;
(k) any Lien of the type described in clause (c) of the definition of
the term "Lien" on securities imposed pursuant to an agreement entered into
for the sale or disposition of such securities pending the closing of such
sale or disposition; provided such sale or disposition is otherwise
permitted hereunder;
(l) Liens arising in connection with any Permitted Receivables Program
(to the extent the sale by the Borrower or the applicable Subsidiary of its
accounts receivable is deemed to give rise to a Lien in favor of the
purchaser thereof in such accounts receivable or the proceeds thereof); and
(m) Liens to secure Indebtedness if, immediately after the grant
thereof, the aggregate amount of all Indebtedness secured by Liens that
would not be permitted but for this clause (m), when aggregated with the
amount of Indebtedness permitted by Section 7.04(h), does not exceed the
greater of (i) $100,000,000 or (ii) 15% of Consolidated Net Tangible Assets
as shown on the most recent consolidated balance sheet delivered pursuant
to Section 4.05 or 6.04(a) or (b), as the case may be.
SECTION 7.02. Sale and Lease-Back Transactions. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease back such property; provided,
however, that the Borrower and the Subsidiaries may enter into any such
transaction to the extent the Lien on any such property would be permitted by
Section 7.01(m).
SECTION 7.03. Mergers, Consolidations and Sales of Assets. In the case of
the Borrower, merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of, or permit the sale, transfer, lease or other disposition
of (in one transaction or in a series of transactions) all or substantially all
of its assets (including any Subsidiary), or agree to do any of the foregoing;
provided, however, that any person may merge into or consolidate with the
Borrower in a transaction in which the Borrower is the surviving corporation if
no
42
Event of Default or Default shall have occurred and be continuing or would occur
immediately after giving effect thereto; provided, further, that nothing in this
Section 7.03 shall prohibit the sale of the capital stock or assets of either or
both Guarantors.
SECTION 7.04. Subsidiary Indebtedness. Permit any Subsidiary to create,
incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule
7.04 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof;
(b) Indebtedness issued to the Borrower or any other Subsidiary;
(c) Indebtedness incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; provided that such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement;
(d) Indebtedness of any person that becomes a Subsidiary after the
date hereof; provided that such Indebtedness exists at the time such person
becomes a Subsidiary and is not created in contemplation of or in
connection with such person becoming a Subsidiary;
(e) Indebtedness as an account party in respect of trade letters of
credit;
(f) Indebtedness arising in connection with any Permitted Receivables
Program (to the extent the sale by the applicable Subsidiary of its
accounts receivable is deemed to be Indebtedness of such Subsidiary);
(g) performance, advance payment, warranty and bid guarantees and
other similar guarantees of payment (other than in respect of Indebtedness
for borrowed money) made by a Subsidiary in the ordinary course of
business; and
(h) other Indebtedness in an aggregate principal amount, when
aggregated with the amount of all Indebtedness secured by Liens permitted
by Section 7.01(m), not exceeding the greater of (i) $100,000,000 or (ii)
15% of Consolidated Net Tangible Assets as shown on the most recent
consolidated balance sheet delivered pursuant to Section 4.05 or 6.04(a) or
(b), as the case may be.
SECTION 7.05. Financial Covenants. (a) Debt to Capitalization. Permit Total
Debt to exceed (i) 60% of Total Capitalization at any time to and including
December 31, 2001, (ii) 55% of Total Capitalization at any time from and
including January 1, 2002 to, but excluding, June 28, 2004 and (iii) 50% of
Total Capitalization at any time from June 28, 2004 and thereafter.
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
the Borrower ending with any fiscal quarter (i) after the Closing Date until,
but excluding, June 28, 2004 to be less than 2.5 to 1.0 and (ii) commencing June
28, 2004 and thereafter to be less than 3.0 to 1.0.
43
ARTICLE VIII
Events Of Default
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with this Agreement or the borrowings hereunder, or any
representation, warranty, statement or information contained in any report,
certificate, financial statement or other instrument furnished in
connection with or pursuant to this Agreement, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any Loan
or Reimbursement Obligation when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or Reimbursement Obligation or any Fee or any other amount (other than an
amount referred to in (b) above) due under this Agreement, when and as the
same shall become due and payable, and such default shall continue
unremedied for a period of three Business Days following notice thereof;
(d) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 6.01(a), 6.05(a) or 6.08 or in Article VII;
(e) default shall be made in the due observance or performance by the
Borrower or any Subsidiary of any covenant, condition or agreement
contained in this Agreement (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender to the
Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any principal
or interest, regardless of amount, due in respect of any Indebtedness in a
principal amount in excess of $50,000,000, when and as the same shall
become due and payable, or (ii) fail to make any payment under any
guarantee, if the aggregate amount of the guaranteed obligations is in
excess of $50,000,000, except to the extent the Borrower or such Subsidiary
is contesting in good faith the requirement to make such payment, or (iii)
fail to observe or perform any other term, covenant, condition or agreement
contained in any agreement or instrument evidencing or governing any such
Indebtedness if the effect of any failure referred to in this clause (iii)
is to cause such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Significant Subsidiary, or of a
substantial part of the property or assets of the Borrower or a Significant
Subsidiary, under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Significant Subsidiary or for a substantial part of
the property or assets of the Borrower or a Significant Subsidiary or (iii)
the winding-up or liquidation of the Borrower or any Significant
Subsidiary; and such proceeding or petition shall continue
44
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(h) the Borrower or any Significant Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title 11
of the United States Code, as now constituted or hereafter amended, or any
other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Significant Subsidiary or for a substantial part of
the property or assets of the Borrower or any Significant Subsidiary, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its inability or
fail generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $50,000,000 (to the extent not adequately covered by
insurance as to which the insurance company has acknowledged coverage in
writing) shall be rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to levy upon
assets or properties of the Borrower or any Subsidiary to enforce any such
judgment;
(j) an ERISA Event shall have occurred that, in the reasonable opinion
of the Required Lenders, when taken together with all other such ERISA
Events that have occurred could reasonably be expected to result in a
Material Adverse Effect;
(k) there shall have occurred a Change in Control; or
(l) the Guarantee contained in Article X of this Agreement shall
cease, for any reason (other than in accordance with Section 11.17), to be
in full force and effect with respect to any Guarantor or the Borrower or
any Guarantor or any Affiliate of the Borrower or any Guarantor shall so
assert;
then, and in every such event (other than an event with respect to the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrower, take either or both of
the following actions, at the same or different times: (i) terminate forthwith
the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and any
unpaid accrued Fees and all other liabilities of the Borrower accrued hereunder
(including all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder), shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Borrower, anything contained herein to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with accrued
interest thereon and any unpaid accrued Fees and all other liabilities of the
Borrower accrued hereunder (including all amounts of L/C Obligations, whether or
not the beneficiaries of the then outstanding Letters of Credit shall have
presented the documents required thereunder), shall automatically become due and
payable, without presentment,
45
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein to the contrary
notwithstanding. With respect to all Letters of Credit with respect to which
presentment for honor shall not have occurred at the time of an acceleration
pursuant to this paragraph, the Borrower shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts
held in such cash collateral account shall be applied by the Administrative
Agent to the payment of drafts drawn under such Letters of Credit, and the
unused portion thereof after all such Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay other obligations of
the Borrower hereunder. After all Reimbursement Obligations shall have been
satisfied and all other obligations of the Borrower hereunder shall have been
paid in full, if, at any time the amount of such cash collateral account exceeds
the then undrawn and unexpired amount of the Letters of Credit, such excess
amount shall be returned to the Borrower (or such other person as may be
lawfully entitled thereto).
ARTICLE IX
The Administrative Agent
In order to expedite the transactions contemplated by this Agreement,
JPMorgan Chase Bank is hereby appointed to act as Administrative Agent on behalf
of the Lenders. Each of the Lenders and each assignee of any such Lender hereby
irrevocably authorizes the Administrative Agent to take such actions on behalf
of such Lender or assignee and to exercise such powers as are specifically
delegated to the Administrative Agent by the terms and provisions hereof,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, (a) to receive on behalf of the Lenders
all payments of principal of and interest on the Loans and all other amounts due
to the Lenders hereunder, and promptly to distribute to each Lender its proper
share of each payment so received; (b) to give notice on behalf of each of the
Lenders to the Borrower of any Event of Default specified in this Agreement of
which the Administrative Agent has actual knowledge acquired in connection with
its agency hereunder; and (c) to distribute to each Lender copies of all
notices, financial statements and other materials delivered by the Borrower
pursuant to this Agreement as received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Borrower of any of the terms, conditions, covenants or agreements contained in
this Agreement. The Administrative Agent shall not be responsible to the Lenders
for the due execution, genuineness, validity, enforceability or effectiveness of
this Agreement or any other instruments or agreements. The Administrative Agent
shall in all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders (or, when
expressly required hereunder, all the Lenders) and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Borrower on account of the failure of or
delay in performance or breach by any Lender of any of its obligations hereunder
or to any Lender on account of the failure of or delay in performance or breach
by any other Lender or the Borrower of any of their respective obligations
hereunder or in connection herewith. The Administrative Agent may execute any
and all duties hereunder by or through agents or employees and shall be entitled
to rely upon the advice of
46
legal counsel selected by it with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be under
no duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, 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, with the consent of the Borrower (which consent
shall not be unreasonably withheld), 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, having a combined capital and surplus of
at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor bank, 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. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 11.05 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.
With respect to the Loans made by it hereunder and with respect to any
Letter of Credit issued or participated in by it, the Administrative Agent in
its individual capacity and not as Administrative Agent shall have the same
rights and powers as any other Lender and may exercise the same as though it
were not the Administrative Agent, and the Administrative Agent 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.
Each Lender agrees (a) to reimburse the Administrative Agent, on demand, in
the amount of its pro rata share (based on its Commitment hereunder) of any
expenses incurred for the benefit of the Lenders by the Administrative Agent,
including counsel fees, that shall not have been reimbursed by the Borrower and
(b) to indemnify and hold harmless the Administrative Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in its capacity as the Administrative Agent or any of
them in any way relating to or arising out of this Agreement or any action taken
or omitted by it or any of them under this Agreement, to the extent the same
shall not have been reimbursed by the Borrower, provided that no Lender shall be
liable to the Administrative Agent or any such other indemnified person for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or wilful misconduct of the Administrative Agent or any of its
directors, officers, employees or agents.
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,
47
any related agreement or any document furnished hereunder. Each Lender further
acknowledges that (i) the Syndication Agent and the Documentation Agents have no
duties or obligations as such under this Agreement and (ii) with respect to its
Loans made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, the Syndication Agent and each Documentation Agent shall
have the same rights and powers under this Agreement as any Lender and may
exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include the Syndication Agent and each Documentation Agent in
its individual capacity.
ARTICLE X
Guarantee
In order to induce the Lenders to extend credit hereunder and in
consideration therefor, each Guarantor hereby, jointly and severally,
unconditionally and irrevocably guarantees, as a primary obligor and not merely
as a surety, the Obligations. Each Guarantor further agrees that the Obligations
may be extended or renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its Guarantee hereunder
notwithstanding any such extension or renewal of any Obligation.
Each Guarantor waives presentment to, demand of payment from and protest to
the Borrower of any of the Obligations, and also waives notice of acceptance of
its obligations and notice of protest for nonpayment. The obligations of each
Guarantor hereunder shall not be affected by the failure of any Lender or the
Administrative Agent to assert any claim or demand or to enforce any right or
remedy against the Borrower under the provisions of this Agreement or otherwise,
or, except as specifically provided therein, by any rescission, waiver,
amendment or modification of any of the terms or provisions of this Agreement or
any other agreement.
Each Guarantor further agrees that its Guarantee hereunder constitutes a
promise of payment when due and not merely of collection, and waives any right
to require that any resort be had by any Lender to any balance of any deposit
account or credit on the books of any Lender in favor of the Borrower or any
other person.
The obligations of either Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, and shall not
be subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever, by reason of the invalidity, illegality or unenforceability of the
Obligations, any impossibility in the performance of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
either Guarantor hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Administrative Agent or any Lender to assert any
claim or demand or to enforce any remedy under this Agreement or any other
agreement, by any waiver or modification in respect of any thereof, by any
default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or by any other act or omission which may or might in any manner or
to any extent vary the risk of either Guarantor or otherwise operate as a
discharge of either Guarantor as a matter of law or equity.
Each Guarantor further agrees that its obligations hereunder shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Obligation is rescinded or
must otherwise be restored by the Administrative Agent or any Lender upon the
bankruptcy or reorganization of the Borrower or otherwise.
In furtherance of the foregoing and not in limitation of any other right
which the Administrative Agent or any Lender may have at law or in equity
against either Guarantor by virtue hereof, upon the
48
failure of the Borrower to pay any Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each Guarantor hereby promises to and will, upon receipt of written
demand by the Administrative Agent, forthwith pay, or cause to be paid, in
immediately available Dollars the amount of such unpaid Obligation.
Anything herein to the contrary notwithstanding, the maximum liability of
each Guarantor hereunder shall in no event exceed the amount which can be
guaranteed by such Guarantor under applicable federal and state laws relating to
the insolvency of debtors (after giving effect to the right of contribution
established in the paragraph below).
Each Guarantor hereby agrees that to the extent that either Guarantor shall
have paid more than its proportionate share of any payment made hereunder, such
Guarantor shall be entitled to seek and receive contribution from and against
the other Guarantor hereunder which has not paid its proportionate share of such
payment. Each Guarantor's right of contribution shall be subject to the terms
and conditions of the following paragraph. The provisions of this paragraph
shall in no respect limit the obligations and liabilities of either Guarantor to
the Administrative Agent and the Lenders, and each Guarantor shall remain liable
to the Administrative Agent and the Lenders for the full amount guaranteed by
such Guarantor hereunder.
Upon payment by either Guarantor of any sums as provided above, all rights
of either Guarantor against the Borrower arising as a result thereof by way of
subrogation or otherwise shall in all respects be subordinated and junior in
right of payment to the prior indefeasible payment in full of all the
Obligations.
ARTICLE XI
Miscellaneous
SECTION 11.01. Notices. Unless otherwise specified herein, 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 or the Guarantors, at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000 Attention of Xxxxxx Xxxxxx (Telecopy No.
(000) 000-0000); with a copy to Xxxxxxx X. Xxxxxxxx at the same address;
(b) if to the Administrative Agent, to JPMorgan Chase Bank, One Chase
Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx
Xxxx (Telecopy No. (000) 000-0000), with a copy to JPMorgan Chase Bank, at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xx. Xxxx Xxxxxxx
(Telecopy No. (000) 000-0000);and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 11.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 11.01.
49
SECTION 11.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans, regardless of
any investigation made by the Lenders or on their behalf, 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 or any Letter of Credit is outstanding and so long as the Commitments
have not been terminated. The provisions of Sections 2.13, 2.15, 2.19 and 11.05
shall remain operative and in full force and effect regardless of the expiration
of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments,
the invalidity or unenforceability of any term or provision of this Agreement,
or any investigation made by or on behalf of the Administrative Agent or any
Lender.
SECTION 11.03. Binding Effect. This Agreement shall become effective when
it shall have been executed by the Borrower and 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 permitted successors and assigns.
SECTION 11.04. Successors and Assigns. (a) Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the Borrower, the Administrative Agent or the
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or a Lender
Affiliate, (x) the Administrative Agent and (unless an Event of Default shall
have occurred and be continuing) the Borrower must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld)
and (y) unless the Borrower and the Administrative Agent shall otherwise agree
to a lower dollar amount, the amount of the Commitment of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $10,000,000 (or the entire remaining amount of the
assigning Lender's Commitment), unless such Lender is making a substantially
simultaneous assignment to the same assignee pursuant to Section 11.04(b) of the
364-Day Credit Agreement in which case the aggregate of the amount of the
Commitment of the assigning Lender subject to the assignment under this
Agreement and the amount of the commitment of the assigning Lender subject to
the assignment under the 364-Day Credit Agreement shall not be less than
$10,000,000, (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 and (iii) the assignee, if it shall not
be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) of this
Section 11.04, from and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least five Business Days after
the execution thereof, (A) 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 (B) 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 or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of Sections 2.13, 2.15, 2.19 and 11.05, as well as to
any Fees accrued for its
50
account and not yet paid). Any assignment by a Lender of rights and/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/or obligations, as the case may be, in
accordance with paragraph (f) of this Section 11.04.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Revolving Loans and Competitive
Loans, in each case without giving effect to assignments thereof which have not
become effective, are as set forth in such Assignment and Acceptance, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements referred to in Section 4.05 or delivered
pursuant to Section 6.04 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) 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 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, and such entries in the
Register shall be conclusive absent manifest error. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrower and the
Administrative Agent to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Lenders and
the Borrower. No assignment shall be effective unless it has been recorded in
the Register as provided in this paragraph (e).
51
(f) Each Lender may without the consent of the Borrower or the
Administrative Agent sell participations to one or more banks or other entities
in all or a portion of its rights and/or obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided, however, 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, (iii) the participating
banks or other entities shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.13, 2.15 and 2.19 (and shall have the duty to
mitigate under Section 2.20) to the same extent as if they were Lenders
(provided, that unless such participation was consented to by the Borrower, each
participating bank or other entity shall only be entitled to the benefit of the
cost protection provisions contained in Sections 2.13, 2.15 and 2.19 to the same
extent as its participating Lender) and (iv) the Borrower, the Administrative
Agent and the Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers decreasing any fees payable hereunder or
the amount of principal of or the rate at which interest is payable on the
Loans, extending any scheduled principal payment date or date fixed for the
payment of interest on the Loans or increasing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender by
or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, "Company Private" or
"Proprietary", each such assignee or participant or proposed assignee or
participant shall execute an agreement whereby such assignee or participant
shall agree (subject to customary exceptions) to preserve the confidentiality of
such confidential information on terms no less restrictive than those applicable
to the Lenders pursuant to Section 11.16.
(h) Any Lender may at any time assign all or any portion of its rights
under this Agreement to a Federal Reserve Bank without the consent of the
Borrower or the Administrative Agent to secure extensions of credit by such
Federal Reserve Bank to such Lender; provided that no such assignment shall
release a Lender from any of its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, the Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to the Borrower by the assigning Lender
hereunder.
(i) The Borrower shall not assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent and each
Lender, and any attempted assignment without such consent shall be null and
void.
(j) Notwithstanding anything to the contrary contained herein, any Lender
(a "Granting Lender") may grant to a special purpose funding vehicle (an "SPC")
of such Granting Lender, identified as such in writing from time to time by the
Granting Lender to the Administrative Agent and the Borrower, the option to
provide to the Borrower all or any part of any Loan that such Granting Lender
would otherwise be obligated to make to the Borrower pursuant to Section 2.01 or
2.03(e), provided that (i) nothing herein shall constitute a commitment to make
any Loan by any SPC and (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Lender
shall be obligated to make such Loan pursuant to the terms hereof. The making of
a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender
(and, if such Loan is a Competitive Loan, shall be deemed to utilize the
Commitments of all the Lenders) to the same extent, and as if, such Loan were
made by the Granting Lender. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with
52
the related Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding senior indebtedness of any SPC, it will not institute
against, or join any other person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceedings under the laws of the United States or any State thereof.
In addition, notwithstanding anything to the contrary contained in this Section
11.04 or in Section 11.16, any SPC may (i) with notice to, but without the prior
written consent of, the Borrower or the Administrative Agent and without paying
any processing fee therefor, assign all or a portion of its interests in any
Loans to its Granting Lender or to any financial institutions providing
liquidity and/or credit facilities to or for the account of such SPC to fund the
Loans made by such SPC or to support the securities (if any) issued by such SPC
to fund such Loans and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of a surety, guarantee or credit or liquidity enhancement to such
SPC.
SECTION 11.05. Expenses; Indemnity. (a) The Borrower agrees (i) to pay all
reasonable out-of-pocket expenses incurred by the Agents and the Arrangers in
connection with the syndication of the credit facilities provided for herein and
the preparation and administration of this Agreement or in connection with any
amendments, modifications or waivers of the provisions hereof (whether or not
the transactions hereby or thereby contemplated shall be consummated), including
the reasonable fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Agents and (ii) to pay all out-of-pocket expenses incurred by
any Agent, either Arranger or any Lender in connection with the enforcement or
protection of its rights in connection with this Agreement or in connection with
the Loans made hereunder, including the fees, charges and disbursements of
Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Agents, and, in connection with any
such enforcement or protection, the fees, charges and disbursements of any other
counsel (including the allocated charges of in-house counsel) for any Agent or
any Lender. The Borrower shall not be obligated to reimburse out-of-pocket legal
expenses pursuant to the preceding sentence for more than one law firm for the
Agents incurred in connection with the preparation of this Agreement or in
connection with any particular amendment, modification or waiver of the
provisions hereof.
(b) The Borrower agrees to indemnify each Agent, each Arranger and each
Lender, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees, advisors and agents (each such person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any agreement or
instrument contemplated thereby, the performance by the parties thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated hereby, (ii) the use of the proceeds of the
Loans or (iii) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not 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 result from
the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 11.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the invalidity or unenforceability
of any term or provision of this Agreement, or any investigation made by or on
behalf of any Agent or any Lender. All amounts due under this Section 11.05
shall be payable on written demand therefor.
53
SECTION 11.06. 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 or any affiliate,
branch or agency thereof 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 each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 11.07. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right 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) below, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
(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; provided, however, that no such
agreement shall (i) decrease the principal amount of, or extend the maturity of
or any scheduled principal payment date or date for the payment of any interest
on any Loan or the payment of any Facility Fee, or waive or excuse any such
payment or any part thereof, or decrease the rate of interest on any Loan, or
extend the maturity date of any Letter of Credit to a date after the Maturity
Date, without the prior written consent of each Lender affected thereby, (ii)
change or extend the Commitment or decrease the Facility Fees or Utilization
Fees of any Lender without the prior written consent of such Lender, (iii)
except in accordance with Section 11.17, reduce or terminate the obligations of
either Guarantor, without the prior written consent of each Lender or (iv) amend
or modify the provisions of Section 2.16, the provisions of Section 11.04(i),
the provisions of this Section or the definition of the term "Required Lenders",
without the prior written consent of each Lender; provided further that no such
agreement shall (A) amend, modify or otherwise affect the rights or duties of
the Administrative Agent hereunder without the prior written consent of the
Administrative Agent or (B) amend, modify or otherwise affect the rights or
duties of any Issuing Lender hereunder without the prior written consent of such
Issuing Lender.
SECTION 11.09. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans
54
or periods shall be increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
SECTION 11.10. Entire Agreement. This Agreement and the Fee Letter
constitute the entire contract among the parties relative to the subject matter
hereof. Any other previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party other than
the parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
SECTION 11.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 11.11.
SECTION 11.12. Severability. In the event any one or more of the provisions
contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 11.13. Counterparts. 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, and shall become effective as provided in Section 11.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Agreement.
SECTION 11.14. 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 are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 11.15. Jurisdiction; Consent to Service of Process. (a) The
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, 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.
55
(b) 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 New York State or Federal
court. 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.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 11.01. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
(d) The Administrative Agent, each Lender, the Borrower and each Guarantor
hereby irrevocably and unconditionally waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action
or proceeding referred to in this Section any special, exemplary, punitive or
consequential damages.
SECTION 11.16. Confidentiality. The Administrative Agent and each of the
Lenders agrees to keep confidential (and to use its best efforts to cause its
respective agents and representatives to keep confidential) the Information (as
defined below) and all copies thereof, extracts therefrom and analyses or other
materials based thereon, except that the Administrative Agent, any Lender or any
Lender Affiliate shall be permitted to disclose Information (a) to such of its
respective officers, directors, employees, agents, affiliates and
representatives as need to know such Information, (b) to the extent requested by
any regulatory authority or examining authority, (c) to the extent otherwise
required by applicable laws and regulations or by any subpoena or similar legal
process, (d) in connection with any suit, action or proceeding relating to the
enforcement of its rights hereunder, (e) to the extent permitted by Section
11.04(g), or (f) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Agreement or (ii) becomes available
to the Administrative Agent or any Lender on a non-confidential basis from a
source other than the Borrower. For the purposes of this Section, "Information"
shall mean all financial statements, certificates, reports, agreements and
information (including all analyses, compilations and studies prepared by the
Administrative Agent or any Lender based on any of the foregoing) that are
received from the Borrower or any Subsidiary and related to the Borrower, any
Subsidiary or any employee, customer or supplier of the Borrower, other than any
of the foregoing that were available to the Administrative Agent or any Lender
on a non-confidential basis prior to its disclosure thereto by the Borrower, and
which are in the case of Information provided after the date hereof, clearly
identified at the time of delivery as confidential, "Company Private" or
"Proprietary". The provisions of this Section 11.16 shall remain operative and
in full force and effect regardless of the expiration and term of this
Agreement.
SECTION 11.17. Release of Guarantees. (a) Notwithstanding anything to the
contrary contained herein, so long as no Default or Event of Default shall have
occurred and be continuing, the Guarantees created by Article X of this
Agreement automatically shall be terminated and be of no further force or effect
and the Administrative Agent is hereby irrevocably authorized by each Lender
(without requirement of notice to or consent of any Lender) to take any action
reasonably requested by the Borrower (it being understood that the
Administrative Agent shall not refuse to take any reasonable action) to further
evidence or document such automatic release of the Guarantees created by Article
X of this Agreement, but in each case only (i) to the extent necessary to permit
the sale of all or substantially all of the stock or of all or substantially all
of the assets of either Guarantor, (ii) to the extent necessary to permit the
consummation of any transaction that has been consented to in accordance with
Section 11.08 or (iii) under the circumstances described in paragraph (b) below.
(b) So long as no Default or Event of Default shall have occurred and be
continuing, on the first date after the Closing Date on which the Borrower has
Index Debt of BBB or better from S&P
56
and Baa2 or better from Xxxxx'x, in each case on "stable watch" or the
equivalent, the Guarantees created by Article X of this Agreement automatically
shall be terminated and be of no further force or effect and the Administrative
Agent is hereby irrevocably authorized by each Lender (without requirement of
notice to or consent of any Lender) to take any action reasonably requested by
the Borrower (it being understood that the Administrative Agent shall not refuse
to take any reasonable action) to further evidence or document such automatic
release of the Guarantees created by Article X of this Agreement.
SECTION 11.18. Waiver and Consent of the Existing Credit Agreement. Each
Lender which is a Lender (as defined under the Existing Credit Agreement) under
the Existing Credit Agreement hereby (i) waives the requirement of Section 2.12
of the Existing Credit Agreement that prepayments of Loans (as defined under the
Existing Credit Agreement) and reductions of Commitments (as defined under the
Existing Credit Agreement) may only be made upon at least 3 Business Days' prior
irrevocable written notice and (ii) consents to the Borrower prepaying the Loans
(as defined under the Existing Credit Agreement) and permanently reducing the
amount of the Commitments (as defined under the Existing Credit Agreement) under
the Existing Credit Agreement to an aggregate amount of no more than
$140,000,000 on the date hereof.
[Remainder of page left blank intentionally; Signature page to follow.]
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.
RAYTHEON COMPANY,
as the Borrower
By:
------------------------------
Name:
Title:
RAYTHEON TECHNICAL SERVICES COMPANY,
as a Guarantor
By:
------------------------------
Name:
Title:
RAYTHEON AIRCRAFT COMPANY,
as a Guarantor
By:
------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as a Lender and as Administrative Agent,
By:
------------------------------
Name:
Title:
X.X. XXXXXX SECURITIES, INC.,
as a Joint Lead Arranger and a Joint Bookrunner,
By:
------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC,
as a Joint Lead Arranger and a Joint Bookrunner,
By:
------------------------------
Name:
Title:
BANK OF AMERICA, N.A.,
as Syndication Agent and as a Lender
By:
------------------------------
Name:
Title:
CITICORP USA, INC.,
as Documentation Agent and as a Lender
By:
------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent and as a Lender
By:
------------------------------
Name:
Title:
MIZUHO FINANCIAL GROUP,
as Documentation Agent and as a Lender
By:
------------------------------
Name:
Title:
Exhibit A to the
Five-Year Credit Agreement
--------------------------
[Form of]
RAYTHEON COMPANY
ADMINISTRATIVE QUESTIONNAIRE*
(*Lenders party to both the Five-Year Credit Agreement and the 364-Day Credit
Agreement need complete this form and submit the completed form as indicated
below in respect of the Five-Year Credit Agreement only, unless the
Administrative Questionnaire for the 364-Day Credit Agreement would be
completed differently.)
Please provide the following details:
A) FULL LEGAL BANK NAME:
------------------------------
B) FULL LEGAL DOMESTIC LENDING OFFICE NAME AND ADDRESS:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
FAX NUMBER:
-------------------------------------------
TELEX NUMBER:
----------------------------------------
C) FULL LEGAL EURODOLLAR LENDING OFFICE NAME AND ADDRESS:
----------------------------------------------------------
----------------------------------------------------------
----------------------------------------------------------
FAX NUMBER:
-------------------------------------------
TELEX NUMBER:
----------------------------------------
D) FULL LEGAL COMPETITIVE LOAN LENDING OFFICE NAME AND ADDRESS:
----------------------------------------------------------
----------------------------------------------------------
FAX NUMBER:
-------------------------------------------
TELEX NUMBER:
----------------------------------------
E) WHERE EXECUTION COPIES SHOULD BE SENT FOR SIGNATURE(S)**:
ADDRESS:
--------------------------------------------
--------------------------------------------
--------------------------------------------
ATTN:
--------------------------------------------
-------------------------------------------- ; or
ELECTRONIC MAIL ADDRESS:
-----------------------------
* The Lender hereby acknowledges that, in the Administrative Agent's discretion,
documents for execution may be sent by electronic mail or posted to a web site
designated by the Administrative Agent.
Please fax your completed questionnaire to Xxxxx Xxxx at
JPMorgan Chase Bank; fax (000) 000-0000.
F) WHERE CONFORMED (FINAL) COPIES SHOULD BE SENT:
ADDRESS:
--------------------------------------------
--------------------------------------------
--------------------------------------------
ATTN:
--------------------------------------------
--------------------------------------------
--------------------------------------------
G) FOR BUSINESS AND/OR CREDIT MATTERS:
CONTACT NAME/DEPT:
------------------------------------
TELEPHONE NUMBER:
-------------------------------------
FAX NUMBER:
--------------------------------------------
ELECTRONIC MAIL ADDRESS:
------------------------------
H) FOR ADMINISTRATIVE/OPERATIONS MATTERS:
CONTACT NAME/DEPT:
------------------------------------
TELEPHONE NUMBER:
-------------------------------------
FAX NUMBER:
--------------------------------------------
ELECTRONIC MAIL ADDRESS:
------------------------------
I) FOR COMPETITIVE BID REQUESTS:
CONTACT NAME/DEPT:
------------------------------------
TELEPHONE NUMBER:
-------------------------------------
FAX NUMBER:
--------------------------------------------
ELECTRONIC MAIL ADDRESS:
------------------------------
J) PAYMENT INSTRUCTIONS (PLEASE SPECIFY WHERE FUNDS, I.E. INTEREST, FEES, LOAN
REPAYMENTS SHOULD BE WIRED):
BANK NAME:
----------------------------------------------
ABA, CHIPS #:
-------------------------------------------
ACCOUNT #:
----------------------------------------------
CREDIT TO (if applicable):
------------------------------
REFERENCE:
----------------------------------------------
ATTENTION:
----------------------------------------------
K) FOR LETTER OF CREDIT ADMINISTRATIVE MATTERS:
CONTACT NAME/DEPT:
------------------------------------
TELEPHONE NUMBER:
-------------------------------------
FAX NUMBER:
--------------------------------------------
ELECTRONIC MAIL ADDRESS:
------------------------------
L) PAYMENT INSTRUCTIONS: (PLEASE SPECIFY WHERE LETTER OF CREDIT COMMISSION FEES
SHOULD BE WIRED):
BANK NAME:
----------------------------------------------
ABA, CHIPS #:
-------------------------------------------
ACCOUNT #:
----------------------------------------------
CREDIT TO (if applicable):
------------------------------
REFERENCE:
----------------------------------------------
ATTENTION:
----------------------------------------------
Exhibit B to the
Five-Year Credit Agreement
--------------------------
[Form of]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five-Year Competitive Advance and Revolving Credit
Facility, dated as of November 28, 2001 (as amended, restated, supplemented or
otherwise modified, the "Credit Agreement"), among Raytheon Company, as the
Borrower, Raytheon Technical Services Company, a Delaware corporation, and
Raytheon Aircraft Company, a Kansas corporation, each as a Guarantor, the
several lenders from time to time parties thereto (the "Lenders"), X.X. Xxxxxx
Securities Inc. and Banc of America Securities LLC, as joint lead arrangers and
joint bookrunners, Citicorp USA, Inc., Credit Suisse First Boston and Mizuho
Financial Group, each as a documentation agent, Bank of America, N.A, as the
syndication agent, and JPMorgan Chase Bank, as the administrative agent for the
Lenders. Terms defined in the Credit Agreement are used herein with the same
meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below (but not prior
to the registration of the information contained herein in the Register pursuant
to Section 11.04(e) of the Credit Agreement), the interests set forth below (the
"Assigned Interests") in the Assignor's rights and obligations under the Credit
Agreement, including, without limitation, the amounts and percentages set forth
below of (i) the Commitments of the Assignor on the Effective Date and (ii) the
Loans owing to the Assignor which are outstanding on the Effective Date. Each of
the Assignor and the Assignee hereby makes and agrees to be bound by all the
representations, warranties and agreements set forth in Section 11.04(c) of the
Credit Agreement, a copy of which has been received by each such party. From and
after the Effective 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
Interests, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interests, relinquish its rights
and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is organized under the laws of a
jurisdiction outside the United States, the forms specified in Section 2.19(g)
of the Credit Agreement, duly completed and executed by such Assignee, (ii) if
the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form of Exhibit A to the Credit Agreement
and (iii) a processing and recordation fee of $3,500.
3. 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:
Assignee's Address for Notices:
Effective Date of Assignment (may not be fewer than 5 Business Days after the
Date of Assignment):
Amount Assigned
(Principal Amount Percentage Assigned of Applicable
Assigned and Identifying Facility/Commitment (set forth, to
information as toindividual at least 8 decimals, as a percentage
Facility/Commitment Competitive Loans) of the Total Commitments)
------------------- ------------------- ------------------------
Commitment $ _%
------------- -------
Competitive Loans $ %
------------- -------
Accepted: */
-
The terms set forth above
are hereby agreed to:
JPMORGAN CHASE BANK,
as Administrative Agent
,as
---------------
Assignor
By: By:
-------------------- -------------------------
Name: Name:
Title: Title:
,as Raytheon Company, as the
---------------
Assignor Borrower
By: By:
-------------------- -------------------------
Name: Name:
Title: Title:
------------------------
* To be completed to the extent consents are required under Section 11.04(b)
of the Credit Agreement
Exhibit C to the
Five-Year Credit Agreement
--------------------------
[Form of]
BORROWING REQUEST
JPMorgan Chase Bank, as Administrative Agent for
the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of [___________]
[Date]
Ladies and Gentlemen:
The undersigned, Raytheon Company, a Delaware corporation (the "Borrower"),
refers to the Five-Year Competitive Advance and Revolving Credit Facility, dated
as of November 28, 2001 (as amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), among the Borrower, Raytheon Technical
Services Company, a Delaware corporation, and Raytheon Aircraft Company, a
Kansas corporation, each as a Guarantor, the several lenders from time to time
parties thereto (the "Lenders"), X.X. Xxxxxx Securities Inc. and Banc of America
Securities LLC, as joint lead arrangers and joint bookrunners, Citicorp USA,
Inc., Credit Suisse First Boston and Mizuho Financial Group, each as a
documentation agent, Bank of America, N.A, as the syndication agent, and
JPMorgan Chase Bank, as the administrative agent for the Lenders (in such
capacity, the "Administrative Agent"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.04
of the Credit Agreement that it requests a Revolving Borrowing under the Credit
Agreement, and in that connection sets forth below the terms on which such
Borrowing is requested to be made:
(A) Date of Borrowing (which is a Business Day)
----------------------
(B) Principal Amount of Borrowing */
----------------------
(C) Interest rate basis **/
----------------------
(D) Interest Period and the last day thereof ***/
----------------------
(E) Funds are requested to be disbursed to the Borrower's account with JPMorgan
Chase Bank (Account No. ___________)
-------------------------
*/ Not less than $10,000,000 and in an integral multiple of $1,000,000, but in
-
any event not exceeding the Total Commitment then available.
**/ Specify Eurodollar Borrowing or ABR Borrowing.
--
***/ Which shall be subject to the definition of "Interest Period" and end not
---
later than the Maturity Date.
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the applicable conditions to lending specified in Sections
5.01(b) and 5.01(c) of the Credit Agreement have been satisfied.
RAYTHEON COMPANY,
By:
--------------------------------
Name:
Title: [Responsible Officer]
Exhibit D-1 to the
Five-Year Credit Agreement
--------------------------
[Form of]
COMPETITIVE BID REQUEST
JPMorgan Chase Bank, as Administrative Agent for
the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
[Date]
Attention: [____________]
Dear Sirs:
The undersigned, Raytheon Company, a Delaware corporation (the "Borrower"),
refers to the Five-Year Competitive Advance and Revolving Credit Facility, dated
as of November 28, 2001 (as amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), among the Borrower, Raytheon Technical
Services Company, a Delaware corporation, and Raytheon Aircraft Company, a
Kansas corporation, each as a Guarantor, the several lenders from time to time
parties thereto (the "Lenders"), X.X. Xxxxxx Securities Inc. and Banc of America
Securities LLC, as joint lead arrangers and joint bookrunners, Citicorp USA,
Inc., Credit Suisse First Boston and Mizuho Financial Group, each as a
documentation agent, Bank of America, N.A, as the syndication agent, and
JPMorgan Chase Bank, as the administrative agent for the Lenders (in such
capacity, the "Administrative Agent"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The Borrower hereby gives you notice pursuant to Section
2.03(a) of the Credit Agreement that it requests a Competitive Borrowing under
the Credit Agreement, and in that connection sets forth below the terms on which
such Competitive Borrowing is requested to be made:
(A) Date of Competitive Borrowing
(which is a Business Day)
--------------------
(B) Principal Amount of
Competitive Borrowing 1/ --------------------
-
(C) Interest rate basis 2/ --------------------
(D) Interest Period and the last
day thereof 3/ --------------------
----------
1 Not less than $10,000,000 (and in integral multiples of $1,000,000) and not
greater than the Total Commitment then available.
2 Eurodollar Loan or Fixed Rate Loan.
3 Which shall be subject to the definition of "Interest Period" and end not
later than the Maturity Date.
Upon acceptance of any or all of the Loans offered by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Sections 5.01(b) and
5.01(c) of the Credit Agreement have been satisfied.
Very truly yours,
RAYTHEON COMPANY,
By:
-------------------------------
Name:
Title: [Responsible Officer]
Exhibit D-2 to the
Five-Year Credit Agreement
--------------------------
[Form of]
NOTICE OF COMPETITIVE BID REQUEST
[Name of Lender]
[Address]
Attention:
[Date]
Dear Sirs:
Reference is made to the Five-Year Competitive Advance and Revolving Credit
Facility, dated as of November 28, 2001 (as amended, restated, supplemented or
otherwise modified, the "Credit Agreement"), among Raytheon Company, as the
Borrower, Raytheon Technical Services Company, a Delaware corporation, and
Raytheon Aircraft Company, a Kansas corporation, each as a Guarantor, the
several lenders from time to time parties thereto (the "Lenders"), X.X. Xxxxxx
Securities Inc. and Banc of America Securities LLC, as joint lead arrangers and
joint bookrunners, Citicorp USA, Inc., Credit Suisse First Boston and Mizuho
Financial Group, each as a documentation agent, Bank of America, N.A, as the
syndication agent, and JPMorgan Chase Bank, as the administrative agent for the
Lenders (in such capacity, the "Administrative Agent"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement. The Borrower made a Competitive Bid Request on
[__________], [____], pursuant to Section 2.03(a) of the Credit Agreement, and
in that connection you are invited to submit a Competitive Bid by
[Date]/[Time].1/ Your Competitive Bid must comply with Section 2.03(b) of the
Credit Agreement and the terms set forth below on which the Competitive Bid
Request was made:
(E) Date of Competitive Borrowing
--------------------
(F) Principal amount of Competitive Borrowing
--------------------
(G) Interest rate basis
--------------------
(H) Interest Period and the last day thereof
--------------------
Very truly yours,
JPMORGAN CHASE BANK, as Administrative Agent,
by
--------------------------------
Name:
Title:
Exhibit D-3 to the
Five-Year Credit Agreement
--------------------------
----------
1 The Competitive Bid must be received by the Administrative Agent (i) in the
case of Eurodollar Loans, not later than 9:30 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing, and (ii) in
the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time,
on the Business Day of a proposed Competitive Borrowing.
2
[Form of]
COMPETITIVE BID
JPMorgan Chase Bank, as Administrative Agent for
the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
[Date]
Attention: [_____________]
Dear Sirs:
The undersigned, [Name of Lender], refers to the Five-Year Competitive
Advance and Revolving Credit Facility, dated as of November 28, 2001 (as
amended, restated, supplemented or otherwise modified, the "Credit Agreement"),
among Raytheon Company, as the Borrower, Raytheon Technical Services Company, a
Delaware corporation, and Raytheon Aircraft Company, a Kansas corporation, each
as a Guarantor, the several lenders from time to time parties thereto (the
"Lenders"), X.X. Xxxxxx Securities Inc. and Banc of America Securities LLC, as
joint lead arrangers and joint bookrunners, Citicorp USA, Inc., Credit Suisse
First Boston and Mizuho Financial Group, each as a documentation agent, Bank of
America, N.A, as the syndication agent, and JPMorgan Chase Bank, as the
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"). Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement. The
undersigned hereby makes a Competitive Bid pursuant to Section 2.03(b) of the
Credit Agreement, in response to the Competitive Bid Request made by the
Borrower on [___________], [____], and in that connection sets forth below the
terms on which such Competitive Bid is made:
(I) Principal Amount 1/
----------------------
(J) Competitive Bid Rate 2/
----------------------
(K) Interest Period and last
day thereof
----------------------
----------
1 Not less than $5,000,000 or greater than the requested Competitive
Borrowing and in integral multiples of $1,000,000. Multiple bids will be
accepted by the Administrative Agent.
2 I.e., Eurodollar Rate + or - %, in the case of Eurodollar Loans, or %, in
the case of Fixed Rate Loans.
3
The undersigned hereby confirms that it is prepared, subject to the
conditions set forth in the Credit Agreement, to extend credit to the Borrower
upon acceptance by the Borrower of this bid in accordance with Section 2.03(d)
of the Credit Agreement.
Very truly yours,
[Name of Lender],
By:
--------------------------------
Name:
Title:
Exhibit D-4 to the
Five-Year Credit Agreement
--------------------------
[Form of]
COMPETITIVE BID ACCEPT/REJECT LETTER
JPMorgan Chase Bank, as Administrative Agent for
the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
[Date]
Attention: [___________]
Dear Sirs:
The undersigned, Raytheon Company (the "Borrower"), refers to the
Five-Year Competitive Advance and Revolving Credit Facility, dated as of
November 28, 2001 (as amended, restated, supplemented or otherwise modified, the
"Credit Agreement"), among the Borrower, Raytheon Technical Services Company, a
Delaware corporation, and Raytheon Aircraft Company, a Kansas corporation, each
as a Guarantor, the several lenders from time to time parties thereto (the
"Lenders"), X.X. Xxxxxx Securities Inc. and Banc of America Securities LLC, as
joint lead arrangers and joint bookrunners, Citicorp USA, Inc., Credit Suisse
First Boston and Mizuho Financial Group, each as a documentation agent, Bank of
America, N.A, as the syndication agent, and JPMorgan Chase Bank, as the
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
In accordance with Section 2.03(c) of the Credit Agreement, we have
received a summary of bids in connection with our Competitive Bid Request dated
and in accordance with Section 2.03(d) of the Credit Agreement,
-----------
we hereby accept the following bids for maturity on [date]:
Principal Amount Fixed Rate/Margin Lender
$ [%]/[+/-. %]
$
We hereby reject the following bids:
Principal Amount Fixed Rate/Margin Lender
$ [%]/[+/-. %]
$
The $ should be deposited in JPMorgan Chase Bank account number
-----------
[_____________] on [date].
Very truly yours,
RAYTHEON COMPANY,
By:
---------------------------------
Name:
Title:
Exhibit E to the
Five-Year Credit Agreement
--------------------------
[Form of]
Opinion of Xxxx X. Xxxxxxx*
1. The Borrower and each Guarantor is a corporation duly organized, validly
existing and in good standing under the laws of the state of its organization.
The Borrower and each Guarantor is duly qualified and in good standing as a
foreign corporation and is authorized to do business in every jurisdiction where
such qualification or authorization is required, except where the failure to be
so qualified would not be reasonably likely to have a Material Adverse Effect.
The Borrower and each Guarantor has the corporate power and authority to
execute, deliver, perform its obligations and, in the case if the Borrower,
borrow under the Credit Agreement.
2. The execution and delivery of the Credit Agreement, the performance of
the Credit Agreement and the transactions contemplated thereby by the Borrower
and each Guarantor, the borrowings by the Borrower under the Credit Agreement
and the use of the proceeds thereof pursuant to the Credit Agreement (a) have
been duly authorized by all requisite corporate, and, if required, stockholder
action and (b) will not (i) violate (A) the certificate of incorporation or
by-laws of the Borrower or the relevant Guarantor, as applicable, or (B) any
order of any Governmental Authority binding upon the Borrower or the relevant
Guarantor, as applicable, or (ii) be in material conflict with, result in a
material breach of or constitute (alone or with notice or lapse of time or both)
a material default under, any material indenture, material agreement or other
material instrument to which the Borrower or the relevant Guarantor, as
applicable, or any of the Borrower's or the relevant Guarantor's properties or
assets, are bound or (iii) result in or require the creation or imposition of
any Lien on any property or assets of the Borrower or the relevant Guarantor, as
applicable,.
3. The Credit Agreement has been duly executed and delivered by the
Borrower and each Guarantor.
4. Except as set forth on Schedule 4.07 to the Credit Agreement, there is
no litigation, proceeding or governmental investigation pending or, to my
knowledge, threatened against the Borrower or any of its Subsidiaries (including
each Guarantor) or their respective businesses, assets or properties (a) that
relates to the Credit Agreement or any agreement or instrument contemplated
thereby or (b) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, would be likely to result in a
Material Adverse Effect.
5. No consent, registration with, approval, waiver, license or
authorization or other action by any Governmental Authority under the laws of
the State of New York, the Delaware General Corporation Law, [Insert appropriate
Kansas law] or the Federal laws of the United States is required for the due
execution, delivery and performance of the Credit Agreement by the Borrower or
either Guarantor.
6. Neither Guarantor is, the Borrower is not and none of its Subsidiaries
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940.
----------
* Opinions may be divided between one or more in-house counsel to the
Borrower and each Guarantor, as deemed appropriate by the Borrower.
3
7. Neither Guarantor is, the Borrower is not and none of its Subsidiaries
is a "holding company" or a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935.
8. Assuming the proceeds of the Loans are used solely for the purposes set
forth in the preamble to the Credit Agreement, the execution, delivery and
performance of the Credit Agreement by the Borrower and each Guarantor and the
borrowings by the Borrower under the Credit Agreement will not violate (i)
applicable New York law, (ii) Delaware General Corporation law, (iii) [Insert
appropriate Kansas law] or (iv) the federal laws of the United States (other
than federal and state securities or blue sky laws, as to which we express no
opinion, but including Regulation T, U or X of the Board of Governors of the
Federal Reserve System of the United States).
Exhibit F to the
Five-Year Credit Agreement
--------------------------
[Form of]
Opinion of Xxxxxxx Xxxx LLP for the Borrower
The Credit Agreement constitutes the legal, valid and binding
obligation of the Borrower and each Guarantor enforceable against it in
accordance with its terms, except as may be limited by (i) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors generally and
(ii) the application of general principles of equity (regardless of whether
enforcement is considered in proceedings at law or in equity).
Exhibit G to the
Five-Year Credit Agreement
--------------------------
[Form of]
ISSUING LENDER AGREEMENT
ISSUING LENDER AGREEMENT dated as of , 200 among the
--------- -
Borrower (as defined below), [NAME OF ISSUING LENDER], as Issuing Lender (in
such capacity, the "Issuing Lender"), and the Administrative Agent (as defined
--------------
below) for the lenders (the "Lenders") and the issuing lenders from time to time
-------
party to the Five-Year Competitive Advance and Revolving Credit Facility, dated
as of November 28, 2001 (as amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), among Raytheon Company, as the Borrower,
Raytheon Technical Services Company, a Delaware corporation, and Raytheon
Aircraft Company, a Kansas corporation, each as a Guarantor, the several lenders
from time to time parties thereto (the "Lenders"), X.X. Xxxxxx Securities Inc.
and Banc of America Securities LLC, as joint lead arrangers and joint
bookrunners, Citicorp USA, Inc., Credit Suisse First Boston and Mizuho Financial
Group, each as a documentation agent, Bank of America, N.A, as the syndication
agent, and JPMorgan Chase Bank, as the administrative agent for the Lenders (in
such capacity, the "Administrative Agent").
The parties hereto have entered into this Issuing Lender Agreement
(this "Agreement") in connection with the Credit Agreement.
---------
SECTION 1. Designation as Issuing Lender. The Issuing Lender is hereby
-----------------------------
designated as an "Issuing Lender" as contemplated by the Credit Agreement and
the Issuing Lender agrees, subject to the terms and conditions set forth herein
and in the Credit Agreement, to become an Issuing Lender under the Credit
Agreement pursuant to which the Issuing Lender agrees to issue and deliver for
the account of the Borrower Letters of Credit in an aggregate undrawn amount at
any one time outstanding which does not exceed [$ ].
---------
SECTION 2. Letters of Credit. On the terms and conditions set forth in
-----------------
the Credit Agreement and relying upon the representations and warranties set
forth in the Credit Agreement, the Issuing Lender agrees, at any time and from
time to time, in accordance with the provisions of Article III of the Credit
-----------
Agreement, to issue Letters of Credit pursuant to the procedures set forth in
Article III of the Credit Agreement. The Issuing Lender agrees that it shall
-----------
comply with the obligations applicable to an Issuing Lender under the Credit
Agreement, including the obligation to give written or telecopy notice to the
Borrower and the Administrative Agent of the matters specified in Section 3.07
------------
of the Credit Agreement.
SECTION 3. Obligation to Reimburse. The Borrower agrees to reimburse
-----------------------
the Issuing Lender all amounts required to pay all drafts presented under
Letters of Credit issued by it in accordance with the provisions of Section 3.05
------------
of the Credit Agreement.
SECTION 4. Payment of Fees. The Borrower agrees to pay the fees on the
---------------
undrawn and unexpired amount of all outstanding Letters of Credit pursuant to
the terms of Section 3.03 of the Credit Agreement. The Borrower agrees to pay to
------------
the Issuing Lender for its own account a fronting fee at a rate per annum equal
to [ %] on the undrawn and unexpired amount of each Letter of Credit issued by
---
the Issuing Lender, payable quarterly in arrears on each L/C Fee Payment Date
after the Issuance Date. In addition, the Borrower shall reimburse the Issuing
Lender for customary administrative, issuance, amendment, payment and
negotiation charges incurred by the Issuing Lender.
SECTION 5. Documentary Credit Practices. The Borrower agrees that,
----------------------------
except as
otherwise expressly agreed to in writing by the Issuing Lender and the Borrower
prior to the Issuing Lender's issuance of any Letter of Credit, to the extent
applicable, the terms of the International Standby Practices 1998, ICC
Publication No. 590, and International Standby Practices ISP98 and, in each
case, all subsequent amendments and revisions thereto are incorporated herein by
reference and shall be deemed a part hereof and shall apply to the Letters of
Credit and to this Agreement.
SECTION 6. Obligations Absolute. As and to the extent set forth in
--------------------
Section 3.06 of the Credit Agreement, the obligation of the Borrower to pay the
------------
amounts referred to above in Sections 3 and 4 shall be absolute, unconditional
and irrevocable and shall be satisfied strictly in accordance with the terms of
the Credit Agreement and this Agreement; provided that the Borrower shall not be
liable for any amount under this Agreement to the extent such amount is caused
by the gross negligence or willful misconduct of the Issuing Lender or its
assignees (if any).
SECTION 7. Notices. All communications and notices hereunder shall be
-------
given as provided in Section 11.01 of the Credit Agreement.
-------------
SECTION 8. Binding Agreement: Assignments. This Agreement and the
------------------------------
terms, covenants and conditions hereof shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns, except that
neither the Borrower nor the Issuing Lender shall be permitted to assign this
Agreement or any interest herein without the prior written consent of the other
parties to this Agreement.
SECTION 9. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
--------------
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE WITHIN SUCH STATE.
SECTION 10. Counterparts. This Agreement may be executed in two or
------------
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract.
SECTION 11. Interpretation. To the extent that the terms and
--------------
conditions of this Agreement conflict with the terms and conditions of the
Credit Agreement, the terms and conditions of the Credit Agreement shall
control. Capitalized terms used herein and not defined herein are used herein as
defined in the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Issuing Lender
Agreement as of the day and year first above written.
RAYTHEON COMPANY, as the Borrower [NAME OF ISSUING LENDER], as the Issuing
Lender
By: By:
------------------------------ ------------------------------------
Name: Name:
Title: Title:
JPMORGAN CHASE BANK, as the
Administrative Agent
By:
------------------------------------
Name:
Title:
SCHEDULE 2.01
to the Five-Year Credit Agreement
---------------------------------
COMMITMENTS AND LENDER INFORMATION
----------------------------------
Amount of Commitment
Commitment at Percentage at
Lender Effective Date Effective Date
------ -------------- --------------
JPMorgan Chase Bank $105,978,260.87 8.15%
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Bank of America, N.A. $105,978,260.87 8.15%
000 Xx. Xxxxxx Xx.,
XX0-000-00-00
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Citicorp USA, Inc. $ 98,913,043.48 7.61%
000 Xxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Credit Suisse First Boston, $ 98,913,043.48 7.61%
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx/Janko Gogolja
Tel: (000) 000-0000
Fax: (000) 000-0000
The Industrial Bank of Japan, Limited, $ 98,913,043.48 7.61%
on behalf of Mizuho Financial Group
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Amount of Commitment
Commitment at Percentage at
Lender Effective Date Effective Date
------ -------------- --------------
Societe Generale $ 98,913,043.48 7.61%
000 X. Xxxxxxx Xxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Bank of Nova Scotia $ 67,826,086.95 5.22%
0000 Xxxxxxxxx Xx. XX
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Barclays Bank PLC $ 67,826,086.95 5.22%
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000 000-0000
BNP Paribas $ 67,826,086.95 5.22%
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Commerzbank AG, $ 67,826,086.95 5.22%
New York and Grand Cayman Branches
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Fleet National Bank $ 67,826,086.95 5.22%
MA DE 100 11F
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Amount of Commitment
Commitment at Percentage at
Lender Effective Date Effective Date
------ -------------- --------------
Wachovia Bank, N.A. $ 56,521,739.13 4.35%
MC GA-423
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx/ Xxxxxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx Commercial Paper Inc. $ 56,521,739.13 4.35%
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Bank of Tokyo-Mitsubishi Trust Company $ 42,391,304.35 3.26%
0000 Xxxxxx xx xxx Xxxxxxxx,00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Bank One, NA (Main Office Chicago) $ 28,260,869.57 2.17%
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Bayerische Landesbank Girozentrale, $ 28,260,869.57 2.17%
Cayman Islands Branch
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Credit Lyonnais New York Branch $ 28,260,869.57 2.17%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Amount of Commitment
Commitment at Percentage at
Lender Effective Date Effective Date
------ --------------- --------------
Mellon Bank, N.A. $ 28,260,869.57 2.17%
0000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: J. Xxxx Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
UBS AG, Stamford Branch $ 28,260,869.57 2.17%
000 Xxxxxxxxxx Xxxxxxxxx- 0X
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Westdeutsche Landesbank Girozentrale, $ 28,260,869.57 2.17%
New York Branch
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
The Bank of New York $ 14,130,434.78 1.09%
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Banca Nazionale Del Lavoro, S.p.A., New York Branch $ 14,130,434.78 1.09%
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
SCHEDULE 2.01
to the Five-Year Credit Agreement
---------------------------------
[TO BE ATTACHED]
SCHEDULE 4.01
to the Five-Year Credit Agreement
---------------------------------
Significant Subsidiaries
------------------------
Raytheon Technical Services Company
Raytheon Aircraft Company
Raytheon International Trade Limited
Raytheon E-Systems, Inc.
Thornwood Trust
SCHEDULE 4.05
to the Five-Year Credit Agreement
---------------------------------
Financial Statements/Material Liabilities
-----------------------------------------
None.
SCHEDULE 4.07
to the Five-Year Credit Agreement
---------------------------------
Litigation
----------
As disclosed in public filings and announcements made, in each case, on or
before November 16, 2001, via the XXXXX system of the Securities and Exchange
Commission.
SCHEDULE 7.01
to the Five-Year Credit Agreement
---------------------------------
Existing Liens
--------------
None.
SCHEDULE 7.04
to the Five-Year Credit Agreement
---------------------------------
Existing Subsidiary Indebtedness
--------------------------------
None.
