1
EXHIBIT 10.53
EXECUTION COPY
$500,000,000
CREDIT AGREEMENT
dated as of
July 2, 1997
among
Cisco Systems, Inc.,
The Lenders Listed Herein,
Citicorp USA, Inc., as Administrative Agent,
Xxxxxx Guaranty Trust Company of New York,
as Documentation Agent
and
Bank of America National Trust and Savings Association
The Chase Manhattan Bank,
as Co-Agents
---------------------------
Citicorp Securities, Inc.
X.X. Xxxxxx Securities Inc.
Arrangers
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TABLE OF CONTENTS
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ARTICLE 1
Definitions
Section 1.01. Definitions . . . . . . . . . . . . . 1
Section 1.02. Accounting Terms and Determinations . 14
Section 1.03. Types of Borrowings . . . . . . . . . 15
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend1 . . . . . . . . 5
Section 2.02. Notice of Committed Borrowing . . . . 15
Section 2.03. Money Market Borrowings . . . . . . . 16
Section 2.04. Notice to Lenders; Funding of Loans . 20
Section 2.05. Registry. . . . . . . . . . . . . . . 21
Section 2.06. Maturity of Loans . . . . . . . . . . 22
Section 2.07. Interest Rates. . . . . . . . . . . . 22
Section 2.08. Facility Fees . . . . . . . . . . . . 23
Section 2.09. Optional Termination or Reduction
of Commitments . . . . . . . . . . 24
Section 2.10. Mandatory Termination of Commitments. 24
Section 2.11. Optional Payments . . . . . . . . . . 24
Section 2.12. General Provisions as to Payments . . 25
Section 2.13. Funding Losses. . . . . . . . . . . . 25
Section 2.14. Computation of Interest and Fees. . . 26
Section 2.15. Increased Commitments; Additional
Lenders . . . . . . . . . . . . . . 26
Section 2.16. Regulation D Compensation . . . . . . 28
Section 2.17. Method of Electing Interest Rates . . 28
ARTICLE 3
Conditions
Section 3.01. Closing . . . . . . . . . . . . . . . 30
Section 3.02. Credit Events . . . . . . . . . . . . 31
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ARTICLE 4
Representations and Warranties
Section 4.01. Corporate Existence and Power . . . . 32
Section 4.02. Corporate and Governmental
Authorization; No Contravention . . 32
Section 4.03. Binding Effect. . . . . . . . . . . . 32
Section 4.04. Financial Information . . . . . . . . 32
Section 4.05. Litigation. . . . . . . . . . . . . . 33
Section 4.06. Compliance with ERISA . . . . . . . . 33
Section 4.07. Environmental Matters . . . . . . . . 33
Section 4.08. Taxes . . . . . . . . . . . . . . . . 34
Section 4.09. Subsidiaries. . . . . . . . . . . . . 34
Section 4.10. Regulatory Restrictions on Borrowing. 34
Section 4.11. Full Disclosure . . . . . . . . . . . 34
ARTICLE 5
Covenants
Section 5.01. Information . . . . . . . . . . . . . 35
Section 5.02. Payment of Obligations. . . . . . . . 37
Section 5.03. Maintenance of Property; Insurance. . 37
Section 5.04. Conduct of Business and Maintenance
of Existence. . . . . . . . . . . . 37
Section 5.05. Compliance with Laws. . . . . . . . . 38
Section 5.06. Inspection of Property, Books and
Records . . . . . . . . . . . . . . 38
Section 5.07. Mergers and Sales of Assets . . . . . 38
Section 5.08. Use of Proceeds . . . . . . . . . . . 38
Section 5.09. Negative Pledge . . . . . . . . . . . 38
Section 5.10. Consolidated Tangible Net Worth . . . 40
Section 5.11. Ratings . . . . . . . . . . . . . . . 40
ARTICLE 6
Defaults
Section 6.01. Events of Default . . . . . . . . . . 40
Section 6.02. Notice of Default . . . . . . . . . . 43
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ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization . . . . 43
Section 7.02. Delegation of Duties. . . . . . . . . 43
Section 7.03. Liability of Agents . . . . . . . . . 43
Section 7.04. Reliance by Agents. . . . . . . . . . 44
Section 7.05. Notice of Default . . . . . . . . . . 44
Section 7.06. Credit Decision . . . . . . . . . . . 44
Section 7.07. Indemnification of Agents . . . . . . 45
Section 7.08. Agents in Individual Capacities . . . 45
Section 7.09. Successor Agents. . . . . . . . . . . 46
Section 7.10. Co-Agents . . . . . . . . . . . . . . 46
ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest
Rate Unfair . . . . . . . . . . . . 47
Section 8.02. Illegality. . . . . . . . . . . . . . 47
Section 8.03. Increased Cost and Reduced Return . . 48
Section 8.04. Taxes . . . . . . . . . . . . . . . . 50
Section 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans . . . . . 51
Section 8.06. Substitution of Lender. . . . . . . . 52
ARTICLE 9
Miscellaneous
Section 9.01. Notices . . . . . . . . . . . . . . . 52
Section 9.02. No Waiver . . . . . . . . . . . . . . 53
Section 9.03. Expenses; Indemnification . . . . . . 53
Section 9.04. Sharing of Set-offs . . . . . . . . . 53
Section 9.05. Right of Set-off. . . . . . . . . . . 54
Section 9.06. Amendments and Waivers. . . . . . . . 54
Section 9.07. Successors and Assigns. . . . . . . . 55
Section 9.08. Collateral. . . . . . . . . . . . . . 57
Section 9.09. Governing Law; Submission to
Jurisdiction. . . . . . . . . . . . 57
Section 9.10. Counterparts; Integration;
Effectiveness . . . . . . . . . . . 57
Section 9.11. Consequences of Effectiveness;
Transitional Provisions . . . . . . 58
Section 9.12. WAIVER OF JURY TRIAL. . . . . . . . . 58
Section 9.13. Confidentiality . . . . . . . . . . . 58
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EXHIBIT A - Note . . . . . . . . . . . . . . . . . . 1
EXHIBIT B - Money Market Quote Request . . . . . . . 1
EXHIBIT C - Invitation for Money Market Quotes . . . 1
EXHIBIT D - Money Market Quote . . . . . . . . . . . 1
EXHIBIT E - Opinion of Counsel for the Borrower. . . 1
EXHIBIT F - Opinion of Special Counsel for
the Agents . . . . . . . . . . . . . . 1
EXHIBIT G - Assignment and Assumption Agreement. . . 1
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AGREEMENT dated as of July 2, 1997 among CISCO SYSTEMS, INC., the
LENDERS listed on the signature pages hereof, CITICORP USA, INC., as
Administrative Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
and THE CHASE MANHATTAN BANK, as Co-Agents.
WHEREAS, the Borrower and certain Lenders are parties to the Credit
Agreement dated as of May 22, 1995 (the "Existing Agreement"); and
WHEREAS, the Borrower wishes to replace the credit facility under the
Existing Agreement with a new credit facility hereunder; and
WHEREAS, when all the conditions specified in Section 9.11 have been
satisfied, the Existing Agreement will be automatically terminated and the loans
outstanding thereunder (if any) will be repaid or refinanced hereunder;
NOW, THEREFORE, The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"ABSOLUTE RATE AUCTION" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03 .
"ADDITIONAL LENDER" has the meaning set forth in Section 2.15.
"ADMINISTRATIVE AGENT" means Citicorp USA, Inc., in its capacity as
Administrative Agent for the Lenders hereunder, and its successors in such
capacity.
"ADMINISTRATIVE QUESTIONNAIRE" means, with respect to each Lender, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Lender.
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"AFFILIATE" means, with respect to any Person, (i) any Person that
directly, or indirectly through one or more intermediaries, controls such Person
(a "Controlling Person") or (ii) any Person (other than such Person or any of
its Subsidiaries) which is controlled by or is under common control with a
Controlling Person. As used herein, the term "control" means 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.
"AGENT" means the Administrative Agent or the Documentation Agent, and
"Agents" both of them.
"AGENT-RELATED PERSONS" means either Agent and any successor agent
arising under Section 7.09, together with their respective Affiliates (including
the Arrangers), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and affiliates.
"APPLICABLE LENDING OFFICE" means, with respect to any Lender, (i) in
the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the case
of its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case
of its Money Market Loans, its Money Market Lending Office.
"ARRANGERS" means Citicorp Securities, Inc. and X.X. Xxxxxx Securities
Inc.
"ATTORNEY COSTS" means and includes all fees and disbursements of any
law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"BASE RATE" means, for any day, a rate per annum equal to the higher of
(i) the Reference Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"BASE RATE LOAN" means a Committed Loan which bears interest at the Base
Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Section 2.07(a) or Article 8.
"BENEFIT ARRANGEMENT" means at any time an employee benefit plan within
the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan
and which is maintained or otherwise contributed to by any member of the ERISA
Group.
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"BORROWER" means Cisco Systems, Inc., a California corporation, and its
successors.
"BORROWER'S 1996 FORM 10-K" means the Borrower's annual report on Form
10-K for July 28, 1996, as filed with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934.
"BORROWER'S LATEST FORM 10-Q" means the Borrower's quarterly report on
Form 10-Q for the quarter ended January 25, 1997, as filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934.
"BORROWING" has the meaning set forth in Section 1.03.
"CLOSING DATE" means the date (which must occur prior to July 30, 1997)
on or after the Effective Date on which the Documentation Agent shall have
received the documents specified in or pursuant to Section 3.01.
"COMMITMENT" means (i) with respect to each Lender listed on the
signature pages hereof, the amount set forth opposite the name of such Lender on
the signature pages hereof and (ii) with respect to each Additional Lender or
Eligible Assignee which becomes a Lender pursuant to Section 2.15 or 9.07(c),
the amount of the Commitment thereby assumed by it, in each case as such amount
may be changed from time to time pursuant to Section 2.09, 2.15 or 9.07(c).
"COMMITTED LOAN" means a loan made by a Lender pursuant to Section 2.01,
provided that, if any such loan or loans (or portions thereof) are combined or
subdivided pursuant to a Notice of Interest Rate Election, the term Committed
Loan shall refer to the combined principal amount resulting from such
combination or to each of the separate principal amounts resulting from such
subdivision, as the case may be.
"CONSOLIDATED EBIT" means, for any period, Consolidated Net Income for
such period plus, to the extent deducted in determining Consolidated Net Income
for such period, the aggregate amount of Consolidated Interest Expense and
income tax expense for such period.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the interest
expense of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis for such period.
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"CONSOLIDATED NET INCOME" means, for any fiscal period, the net income
of the Borrower and its Consolidated Subsidiaries, determined on a consolidated
basis for such period.
"CONSOLIDATED SUBSIDIARY" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date. "Consolidated Tangible Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries less
their consolidated Intangible Assets, all determined as of such date. For
purposes of this definition, "Intangible Assets" means the amount (to the extent
reflected in determining such consolidated stockholders' equity) of (i) all
write-ups (other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within twelve months after
the acquisition of such business) subsequent to January 28, 1997 in the book
value of any asset owned by the Borrower or a Consolidated Subsidiary, (ii)
except for such as constitute marketable securities under generally accepted
accounting principles, all investments in unconsolidated Subsidiaries and all
equity investments in Persons which are not Subsidiaries and (iii) all
unamortized debt discount and expense, unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, anticipated future benefit of
tax loss carry-forwards, copyrights, organization or developmental expenses and
other intangible assets.
"DEBT" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable or accrued liabilities in respect of
accrued expenses arising in the ordinary course of business, (iv) all
obligations of such Person as lessee which are capitalized in accordance with
generally accepted accounting principles, (v) all non-contingent obligations
(and, for purposes of Section 5.09 and the definitions of Material Debt and
Material Financial Obligations, all contingent obligations) of such Person to
reimburse any bank or other Person in respect of amounts paid under a letter of
credit or similar instrument, (vi) any of the foregoing secured by a Lien on any
asset of such Person, whether or not such Debt is otherwise an obligation of
such Person and (vii) any of the foregoing of others Guaranteed by such Person;
provided that Synthetic Leases are not Debt for purposes hereof.
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"DEFAULT" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DERIVATIVES OBLIGATIONS" of any Person means all obligations of such
Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
the foregoing transactions) or any combination of the foregoing transactions.
"DOCUMENTATION AGENT" means Xxxxxx Guaranty Trust Company of New York in
its capacity as documentation agent for the Lenders hereunder, and its
successors in such capacity.
"DOMESTIC BUSINESS DAY" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"DOMESTIC LENDING OFFICE" means, as to each Lender, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Lender may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent.
"EFFECTIVE DATE" means the date this Agreement becomes effective in
accordance with Section 9.10.
"ELIGIBLE ASSIGNEE" means (i) a Lender; (ii) an Affiliate of a Lender;
(iii) a commercial bank organized under the laws of the United States or any
State thereof and having a combined capital and surplus of at least
$1,000,000,000; (iv) a savings and loan association or savings bank organized
under the laws of the United States or any State thereof and having a combined
capital and surplus of at least $1,000,000,000; (v) a commercial bank organized
under the laws of any other country that is
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a member of the Organization for Economic Cooperation and Development or has
concluded a special lending arrangement with the International Monetary Fund
associated with its General Arrangements to Borrow, or a political subdivision
of any such country, and having a combined capital and surplus of at least
$1,000,000,000, as long as such bank is acting through a branch or agency
located in the United States; (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development; (vii) a
finance company, insurance company or other financial institution or fund
(whether a corporation, partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of business and having a combined capital and surplus of at least
$1,000,000,000 and (viii) any other Person approved by the Agent and the
Borrower, such approval not to be unreasonably withheld or delayed; provided
however, that neither the Borrower nor an Affiliate or Subsidiary of the
Borrower shall qualify as an Eligible Assignee.
"ENVIRONMENTAL LAWS" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to the
environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute.
"ERISA GROUP" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"EURO-DOLLAR BUSINESS DAY" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London, England.
"EURO-DOLLAR LENDING OFFICE" means, as to each Lender, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Euro-Dollar Lending Office by notice
to the Borrower and the Administrative Agent.
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"EURO-DOLLAR LOAN" means a Committed Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election.
"EURO-DOLLAR MARGIN" means a rate per annum determined in accordance
with the Pricing Schedule.
"EURO-DOLLAR RATE" means a rate of interest determined pursuant to
Section 2.07(b) on the basis of a London Interbank Offered Rate.
"EURO-DOLLAR RESERVE PERCENTAGE" has the meaning set forth in Section
2.16.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXISTING AGREEMENT" has the meaning set forth in the recitals hereto.
"FACILITY FEE RATE" has the meaning set forth in Section 2.08.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if such day is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so published on the
next succeeding Domestic Business Day, and (ii) if no such rate is so published
on such next succeeding Domestic Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Citibank, N.A. on such day on such
transactions as determined by the Administrative Agent.
"FIXED RATE LOANS" means Euro-Dollar Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant
to Section 8.01) or any combination of the foregoing.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
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"GROUP OF LOANS" means, at any time, a group of Loans consisting of (i)
all Committed Loans which are Base Rate Loans at such time or (ii) all Euro-
Dollar Loans having the same Interest Period at such time, provided that, if a
Committed Loan of any particular Lender is converted to or made as a Base Rate
Loan pursuant to Article 8, such Loan shall be included in the same Group or
Groups of Loans from time to time as it would have been in if it had not been so
converted or made.
"GUARANTEE" by any Person means any obligation, contingent or otherwise,
of such Person directly or indirectly guaranteeing any Debt of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt (whether
arising by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the holder of such Debt of the payment
thereof or to protect such holder against loss in respect thereof (in whole or
in part), providedthat the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business. The term "GUARANTEE"
used as a verb has a corresponding meaning.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
"INCREASED COMMITMENTS" has the meaning set forth in Section 2.15
hereof.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section 9.03(b).
"INDEMNITEE" has the meaning set forth in Section 9.03(b).
"INSOLVENCY PROCEEDING" means (a) any case, action or proceeding before
any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors, undertaken under U.S. Federal, state or foreign law, including
the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. Sec 101, et seq.).
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"INTEREST PERIOD" means: (1) with respect to each Euro-Dollar Loan, (i)
the period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in an applicable Notice of Interest
Rate Election and ending one, two, three or six months thereafter, as the
Borrower may elect in the applicable Notice of Borrowing or (ii) if the Borrower
requests a maturity of nine or twelve months in the applicable Notice of
Borrowing or Notice of Interest Rate Election and each Lender advises the
Administrative Agent that deposits in dollars with maturities of nine or twelve
months, as the case may be, are being offered to such Lender in the London
interbank market in amounts sufficient to fund such Lender's proportionate share
of such Borrowing or that such Interest Period is otherwise acceptable to such
Lender, the period commencing on the date of such Borrowing and ending nine or
twelve months thereafter, as the case may be, provided that:
(a) any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall, subject to clause (c) below, be extended to
the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(c) any Interest Period which would otherwise end after the Termination
Date shall end on the Termination Date.
(2) with respect to each Money Market LIBOR Loan, the period commencing
on the date of borrowing specified in the applicable Notice of Borrowing and
ending one, two, three, six, nine or twelve months thereafter as the Borrower
may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall, subject to clause (b) below, be extended to
the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business
Day of a calendar month (or on a day for which there is no numerically
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corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(c) any Interest Period which would otherwise end after the Termination
Date shall end on the Termination Date.
(3) with respect to each Money Market Absolute Rate Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 7 days or
more than 366 days) as the Borrower may elect in accordance with Section 2.03;
provided that:
(a) any Interest Period which would otherwise end on a day which is not
a Euro-Dollar Business Day shall, subject to clause (b) below, be extended to
the next succeeding Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the Termination
Date shall end on the Termination Date.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended, or any successor statute.
"LENDER" means each Person listed on the signature pages hereof with a
Commitment opposite its name, each Additional Lender or Eligible Assignee which
becomes a Lender pursuant to Section 2.15 or 9.07(c), as the case may be, and
their respective successors.
"LIBOR AUCTION" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, the Borrower or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"LOAN" means a Base Rate Loan, a Euro-Dollar Loan or a Money Market Loan
and "Loans" means Base Rate Loans, Euro-Dollar Loans or Money Market Loans or
any combination of the foregoing.
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"LONDON INTERBANK OFFERED RATE" has the meaning set forth in Section
2.07(b).
"MATERIAL ADVERSE EFFECT" means (i) any material adverse effect upon the
business, financial position or results of operations of the Borrower and its
Consolidated Subsidiaries, taken as a whole; (ii) a material impairment of the
ability of the Borrower to perform its obligations under this Agreement or (iii)
a material adverse effect on the rights and remedies of the Agents and the
Lenders under this Agreement.
"MATERIAL DEBT" means Debt (other than the Notes) of the Borrower and/or
one or more of its Subsidiaries, arising in one or more related or unrelated
transactions, in an aggregate principal or face amount exceeding $50,000,000.
"MATERIAL FINANCIAL OBLIGATIONS" means a principal or face amount of
Debt and/or net payment obligations in respect of Derivatives Obligations of the
Borrower and/or one or more of its Subsidiaries, arising in one or more related
or unrelated transactions, exceeding in the aggregate $50,000,000.
"MATERIAL PLAN" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"MATERIAL SUBSIDIARY" means at any time any Subsidiary which at such
time is a "significant subsidiary" as such term is defined in Rule 1-02 of
Regulation S-X promulgated by the Securities and Exchange Commission.
"MONEY MARKET ABSOLUTE RATE" has the meaning set forth in Section
2.03(d)(ii)(D).
"MONEY MARKET ABSOLUTE RATE LOAN" means a loan to be made by a Lender
pursuant to an Absolute Rate Auction.
"MONEY MARKET LENDING OFFICE" means, as to each Lender, its Domestic
Lending Office or such other office, branch or affiliate of such Lender as it
may hereafter designate as its Money Market Lending Office by notice to the
Borrower and the Administrative Agent; provided that any Lender may from time to
time by notice to the Borrower and the Administrative Agent designate separate
Money Market Lending Offices for its Money Market LIBOR Loans, on the one hand,
and its Money Market Absolute Rate Loans, on the other hand, in which case all
references herein to the Money Market Lending Office of such Lender shall be
deemed to refer to either or both of such offices, as the context may require.
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"MONEY MARKET LIBOR LOAN" means a loan to be made by a Lender pursuant
to a LIBOR Auction (including such a loan bearing interest at the Base Rate
pursuant to Section 8.01).
"MONEY MARKET LOAN" means a Money Market LIBOR Loan or a Money Market
Absolute Rate Loan.
"MONEY MARKET MARGIN" has the meaning set forth in Section
2.03(d)(ii)(c).
"MONEY MARKET QUOTE" means an offer by a Lender to make a Money Market
Loan in accordance with Section 2.03.
"MULTIEMPLOYER PLAN" means at any time an employee pension benefit plan
within the meaning of Section 4001(a)(3) of ERISA to which any member of the
ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions, including for these
purposes any Person which ceased to be a member of the ERISA Group during such
five year period.
"NET QUALIFYING ASSETS" means, on the last day of any fiscal quarter,
the sum of (i) cash, (ii) cash equivalents, (iii) marketable securities to be
disposed within one year of the date of acquisition thereof and (iv) long-term
investments (other than any such assets subject to a Lien permitted by Section
5.09(a), (b), (h) or (j)), less the Debt of the Borrower and its Consolidated
Subsidiaries, all determined on a consolidated basis for the Borrower and its
Consolidated Subsidiaries as of such date.
"NOTES" means any promissory notes issued pursuant to Section 2.05(b).
"NOTICE OF BORROWING" means a Notice of Committed Borrowing or a Notice
of Money Market Borrowing.
"NOTICE OF COMMITTED BORROWING" has the meaning set forth in Section
2.02.
"NOTICE OF INTEREST RATE ELECTION" has the meaning set forth in Section
2.17.
"NOTICE OF MONEY MARKET BORROWING" has the meaning set forth in Section
2.03(f).
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"PARENT" means, with respect to any Lender, any Person controlling such
Lender.
"PARTICIPANT" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"PLAN" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"PRICING SCHEDULE" means the Schedule attached hereto identified as
such. "Quarterly Payment Dates" means each March 31, June 30, September 30 and
December 31.
"REFERENCE BANKS" means the principal London offices of Citibank, N.A.,
Union Bank of Switzerland and Xxxxxx Guaranty Trust Company of New York or
replacements thereof selected by the Administrative Agent and reasonably
acceptable to the Borrower.
"REFERENCE RATE" means the rate of interest publicly announced by
Citibank, N.A. in New York City from time to time as its base rate.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REQUIRED LENDERS" means at any time Lenders having at least 60% of the
aggregate amount of the Commitments or, if the Commitments shall have been
terminated, holding at least 60% of the aggregate unpaid principal amount of the
Loans.
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"SUBSIDIARY" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person; unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"SYNTHETIC LEASE" means (i) any lease transaction intended by the
parties to be treated as an operating lease for financial reporting purposes but
to enable the lessee to be treated as the owner for federal income tax purposes
or (ii) any similar off-balance-sheet lease transaction.
"TERMINATION DATE" means July 2, 2002, or, if such day is not a Euro-
Dollar Business Day, the next preceding Euro-Dollar Business Day.
"UNFUNDED LIABILITIES" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"UNITED STATES" means the United States of America, including the States
and the District of Columbia, but excluding its territories and possessions.
Section 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Lenders; providedthat, no change in generally accepted accounting
principles shall affect the operation of any covenant if the Borrower notifies
the Administrative Agent that the Borrower wishes to amend such covenant in
Article 5 to eliminate such effect (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend Article 5 for such purpose)
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders. Until such notice is
given or withdrawal is made, as the case
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may be, the Borrower's compliance with such covenant shall be determined on the
basis of generally accepted accounting principles in effect immediately before
the relevant change in generally accepted accounting principles became
effective.
Section 1.03. Types of Borrowings. The term "BORROWING" denotes the
aggregation of Loans of one or more Lenders to be made to the Borrower pursuant
to Article 2 on a single date and for a single Interest Period. Borrowings are
classified for purposes of this Agreement either by reference to the pricing of
Loans comprising such Borrowing (e.g., a "FIXED RATE BORROWING" is a Euro-Dollar
Borrowing or a Money Market Borrowing (excluding any such Borrowing consisting
of Money Market LIBOR Loans bearing interest at the Base Rate pursuant to
Section 8.01), and a "EURO-DOLLAR BORROWING" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article 2 under which
participation therein is determined (i.e., a "COMMITTED BORROWING" is a
Borrowing under Section 2.01 in which all Lenders participate in proportion to
their Commitments, while a "MONEY MARKET BORROWING" is a Borrowing under Section
2.03 in which the Lender participants are determined on the basis of their bids
in accordance therewith).
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend. Each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Loans to the Borrower
pursuant to this Section from time to time from the Closing Date to but
excluding the Termination Date in amounts such that the aggregate principal
amount of Committed Loans by such Lender at any one time outstanding shall not
exceed the amount of its Commitment. Each Borrowing under this Section shall be
in an aggregate principal amount of $10,000,000 or any larger multiple of
$1,000,000 (except that any such Borrowing may be in the aggregate amount
available in accordance with Section 3.02) and shall be made from the several
Lenders ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this Section, repay, or to the
extent permitted by Section 2.11, prepay Loans and reborrow at any time under
this Section.
Section 2.02. Notice of Committed Borrowing. The Borrower shall give the
Administrative Agent notice (a "NOTICE OF COMMITTED BORROWING") (x) not later
than 1:00 P.M. (New York City time) on the date of each Base Rate
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Borrowing and (y) not later than 1:00 P.M. (New York City time) on the third
Euro-Dollar Business Day before each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) whether the Loans comprising such Borrowing are to bear
interest initially at the Base Rate or a Euro-Dollar Rate; and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
initial interest Period applicable thereto, subject to the provisions of
the definition of Interest Period.
Notwithstanding the foregoing, no more than 10 Euro-Dollar Borrowings shall be
outstanding at any one time, and any Borrowing which would exceed such
limitation shall be made as a Base Rate Borrowing.
Section 2.03. Money Market Borrowings. (a) The Money Market Option. In
addition to Committed Borrowings pursuant to Section 2.01, the Borrower may
request the Lenders to make offers to make Money Market Loans to the Borrower in
accordance with this Section. The Lenders may, but shall have no obligation to,
make such offers and the Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section.
(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section, it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request substantially in the form of Exhibit B hereto so as to be received not
later than 1:00 P.M. (New York City time) on (x) the fourth Euro-Dollar Business
Day prior to the date of Borrowing proposed therein, in the case of a LIBOR
Auction or (y) the Domestic Business Day next preceding the date of Borrowing
proposed therein, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective) specifying:
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(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day
in the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$10,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for up to three
different Interest Periods in a single Money Market Quote Request. No Money
Market Quote Request shall be given within five Euro-Dollar Business Days (or
such other number of days as the Borrower and the Administrative Agent may
agree) of any other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a Money
Market Quote Request, the Administrative Agent shall send to the Lenders by
telex or facsimile transmission an Invitation for Money Market Quotes
substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Borrower to each Lender to submit Money Market Quotes offering
to make the Money Market Loans to which such Money Market Quote Request relates
in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Lender may
submit a Money Market Quote containing an offer or offers to make Money Market
Loans in response to any Invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection 2.03(d) and must be
submitted to the Administrative Agent by telex or facsimile transmission at its
offices specified in or pursuant to Section 9.01 not later than (x) 2:00 P.M.
(New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 12:00 Noon
(New York City time) on the proposed date of Borrowing, in the case of an
Absolute Rate Auction (or, in either case, such other time or date as the
Borrower and the Administrative Agent shall have mutually agreed and shall have
notified to the Lenders not later than the date of the Money Market Quote
Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective); provided that Money Market Quotes submitted by the
Administrative Agent (or any affiliate of the Administrative Agent) in the
capacity of a Lender
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may be submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the other Lenders,
in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the
other Lenders, in the case of an Absolute Rate Auction. Subject to Articles 3
and 6 , any Money Market Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on the instructions of the
Borrower.
(ii) Each Money Market Quote shall be in substantially the form
of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for
which each such offer is being made, which principal amount (w)
may be equal to, greater than or less than the Commitment of the
quoting Lender, (x) must be $10,000,000 or a larger multiple of
$1,000,000, (y) may not exceed the principal amount of Money
Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of
Money Market Loans for which offers being made by such quoting
Lender may be accepted,
(C) in the case of a LIBOR Auction, the margin above or
below the applicable London Interbank Offered Rate (the "Money
Market Margin") offered for each such Money Market Loan,
expressed as a percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (specified to the nearest 1/10,000th of 1%)
(the "Money Market Absolute Rate") offered for each such Money
Market Loan, and
(E) the identity of the quoting Lender.
A Money Market Quote may set forth up to five separate offers by the
quoting Lender with respect to each Interest Period specified in the related
Invitation for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
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(A) is not substantially in conformity with Exhibit D
hereto or does not specify all of the information required by
subsection 2.03(d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Money Market Quotes; or
(D) arrives after the time set forth in subsection
2.03(d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly notify
the Borrower of the terms (x) of any Money Market Quote submitted by a Lender
that is in accordance with subsection 2.03(d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Lender with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 1:00 P.M. (New
York City time) on (x) the third Euro-Dollar Business Day prior to the proposed
date of Borrowing, in the case of a LIBOR Auction or (y) the proposed date of
Borrowing, in the case of an Absolute Rate Auction (or, in either case, such
other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Lenders not later than the date
of the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection 2.03(e). The Borrower may, but shall have
no obligation to, accept any such offers in the manner set forth in this
Section. In the case of acceptance, such notice (a "Notice of Money Market
Borrowing") shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Borrower may accept any Money Market
Quote in whole or in part; provided that:
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(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money
Market Quote Request;
(ii) the aggregate principal amount of each Money Market
Borrowing must be $10,000,000 or a larger multiple of $1,000,000;
(iii) acceptance of offers for any requested Interest Period may
only be made on the basis of ascending Money Market Margins or Money
Market Absolute Rates, as the case may be; and
(iv) the Borrower may not accept any offer that is described in
subsection 2.03(d)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two or
more Lenders with the same Money Market Margins or Money Market Absolute Rates,
as the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Lenders as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
(h) Notice by Administrative Agent. Promptly following each Money Market
Borrowing, the Administrative Agent shall notify each Lender of (i) the ranges
of bids submitted, (ii) the highest and lowest bids accepted for such Borrowing
and (iii) the aggregate principal amount of the Loans included in such
Borrowing.
Section 2.04. Notice to Lenders; Funding of Loans. (a) Upon receipt of a
Notice of Borrowing, the Administrative Agent shall promptly notify each Lender
of the contents thereof and of such Lender's share (if any) of such Borrowing
and such Notice of Borrowing shall not thereafter be revocable by the Borrower.
(b) Not later than 2:00 P.M. (New York City time) on the date of each
Borrowing, each Lender participating therein shall make available its share of
such Borrowing, in federal or other funds immediately available in New York
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City, to the Administrative Agent at its address referred to in Section 9.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article 3 has not been satisfied, the Administrative Agent will
make the funds so received from the Lenders available to the Borrower at the
Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the
interest rate applicable thereto pursuant to Section 2.07 and (ii) in the case
of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan included in such Borrowing for purposes of this
Agreement.
Section 2.05. Registry. (a) The Administrative Agent shall maintain a
register (the "Register") on which it will record the Commitment of each Lender,
each Loan made by such Lender and each repayment of any Loan made by such
Lender. Any such recordation by the Administrative Agent on the Register shall
be conclusive, absent manifest error. Each Lender shall record on its internal
records (including computerized systems) the foregoing information as to its own
Commitment and Loans. Failure to make any such recordation, or any error in such
recordation, shall not affect the Borrower's obligations hereunder.
(b) The Borrower hereby agrees that, promptly upon the request of any
Lender at any time, the Borrower shall deliver to such Lender a duly executed
promissory note (a "Note"), substantially in the form of Exhibit A hereto,
payable to the order of such Lender and representing the obligation of the
Borrower to pay the unpaid principal amount of the Loans made by such Lender,
with interest as provided herein on the unpaid principal amount from time to
time outstanding.
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Section 2.06. Maturity of Loans. Each Loan shall mature, and the
principal amount thereof shall be due and payable (together with interest
accrued thereon), on the Termination Date.
Section 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal to the Base
Rate for such day. Such interest shall be payable at maturity, quarterly in
arrears on each Quarterly Payment Date prior to maturity and, with respect to
the principal amount of any Base Rate Loan converted to a Euro-Dollar Loan, on
the date such amount is so converted. Any overdue principal of or interest on
any Base Rate Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the sum of 2% plus the rate otherwise
applicable to Base Rate Loans for such day.
(b) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Interest Period.
Such interest shall be payable in arrears for each Interest Period on
the last day thereof and, if such Interest Period is longer than three months,
at intervals of three months after the first day thereof.
The "LONDON INTERBANK OFFERED RATE" applicable to any Interest Period
means the rate appearing on Page 3750 of the Telerate Service (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of the Telerate Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 A.M. (London time) two Euro-Dollar Business Days prior to
the commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
so available at such time for any reason, then the "London Interbank Offered
Rate" with respect to such Euro-Dollar Borrowing for such Interest Period shall
be the average (rounded upward, if necessary, to the next higher 1/16 of 1%) of
the respective rates per annum at which deposits in dollars are offered to each
of the Reference Banks in the London interbank market at approximately 11:00
A.M. (London time) two Euro-Dollar Business Days before the first day of such
Interest Period in an amount approximately equal to the principal amount of the
Euro-Dollar Loan of such Reference Bank to which such Interest Period is to
apply and for a period of
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time comparable to such Interest Period. If any Reference Bank does not furnish
a timely quotation, the Administrative Agent shall determine the relevant
interest rate on the basis of the quotation or quotations furnished by the
remaining Reference Bank or Banks or, if none of such quotations is available on
a timely basis, the provisions of Section 8.01 shall apply.
(c) Any overdue principal of or interest on any Euro-Dollar Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for such
day plus the London Interbank Offered Rate applicable to such Loan on the day
before such payment was due and (ii) the sum of 2% plus the rate applicable to
Base Rate Loans for such day.
(d) Subject to Section 8.01 , each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with subsection
(b) as if the related Money Market LIBOR Borrowing were a Committed Euro-Dollar
Borrowing) plus (or minus) the Money Market Margin quoted by the Lender making
such Loan in accordance with Section 2.03 . Each Money Market Absolute Rate Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Lender making such Loan in accordance with
Section 2.03. Such interest shall be payable in arrears for each Interest Period
on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Money Market Loan shall bear interest, payable
on demand, for each day until paid at a rate per annum equal to the sum of 2%
plus the Base Rate for such day.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Lenders of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
Section 2.08. Facility Fees. The Borrower shall pay to the
Administrative Agent for the account of the Lenders ratably a facility fee as
set forth in this paragraph at the facility fee rate determined daily in
accordance with the Pricing Schedule (the "Facility Fee Rate"). Such facility
fee shall accrue (i) from and including the Effective Date to but excluding the
date of termination of the Commitments in their entirety, on the daily aggregate
amount of the
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Commitments (whether used or unused) and (ii) from and including such date of
termination to but excluding the date the Loans shall be repaid in their
entirety, on the sum of the daily aggregate outstanding principal amount of the
Loans. Accrued fees under this Section shall be payable quarterly in arrears on
each Quarterly Payment Date and on the date of termination of the Commitments in
their entirety (and, if later, the date the Loans shall be repaid in their
entirety). In the case of Commitment reductions pursuant to Section 2.09,
effective upon such reduction, the foregoing fees shall be calculated on such
Commitments as so reduced.
Section 2.09. Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i) terminate the Commitments at any time, if no Loans are
outstanding at such time or (ii) ratably reduce from time to time by an
aggregate amount of $10,000,000 or a larger multiple of $1,000,000, the
aggregate amount of the Commitments in excess of the aggregate outstanding
principal amount of the Loans.
Section 2.10. Mandatory Termination of Commitments. The Commitments
shall terminate on the Termination Date and any Loans then outstanding (together
with accrued interest thereon) shall be due and payable on such date.
Section 2.11. Optional Payments. (a) Subject in the case of any Euro-
Dollar Borrowing to Section 2.13, the Borrower may, upon notice to the
Administrative Agent not later than 12:00 Noon (New York City time) on the date
of such prepayment, prepay any Group of Base Rate Loans (or any Money Market
Borrowing bearing interest at the Base Rate pursuant to Section 8.01 ) or upon
at least three Euro-Dollar Business Days' notice to the Administrative Agent,
prepay any Group of Euro-Dollar Loans, in each case in whole at any time, or
from time to time in part in amounts aggregating $10,000,000 or any larger
multiple of $1,000,000, by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such optional
prepayment shall be applied to prepay ratably the Loans of the several Lenders
included in such Group of Loans (or such Money Market Borrowing).
(b) Except (i) as provided in subsection (a) above or (ii) with respect
to any particular Money Market Loan, as agreed upon between the Lender making
such Loan and the Borrower, the Borrower may not prepay all or any portion of
the principal amount of any Money Market Loan prior to the maturity thereof.
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(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
Section 2.12. General Provisions as to Payments. (a) The Borrower shall
make each payment of principal of, and interest on, the Loans, and facility fees
not later than 2:00 P.M. (New York City time) on the date when due, in Federal
or other funds immediately available in New York City, to the Administrative
Agent at its address referred to in Section 9.01. The Administrative Agent will
promptly distribute to each Lender its ratable share of each such payment
received by the Administrative Agent for the account of the Lenders. Whenever
any payment of principal of, or interest on, the Base Rate Loans or of fees
shall be due on a day which is not a Domestic Business Day, the date for payment
thereof shall be extended to the next succeeding Domestic Business Day. Whenever
any payment of principal of, or interest on, the Euro-Dollar Loans shall be due
on a day which is not a Euro-Dollar Business Day, the date for payment thereof
shall be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, the Money Market Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for
payment thereof shall be extended to the next succeeding Euro-Dollar Business
Day. If the date for any payment of principal is extended by operation of law or
otherwise, interest thereon shall be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent that the Borrower
shall not have so made such payment, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent, at the Federal Funds Rate.
Section 2.13. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
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converted to a different type of Loan (pursuant to Article 2, 6 or 8 otherwise)
on any day other than the last day of an Interest Period applicable thereto, or
if the Borrower fails to borrow, prepay, convert or continue any Fixed Rate
Loans after notice has been given to any Lender in accordance with Section
2.04(a), 2.09 or 2.11, the Borrower shall reimburse each Lender within 15 days
after demand for any resulting loss or expense incurred by it including (without
limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any such
payment or conversion or failure to borrow, prepay, convert or continue;
provided that such Lender shall have delivered to the Borrower a certificate
setting forth in reasonable detail the nature and amount thereof and the basis
for the calculation of such loss or expense, which certificate shall be
conclusive in the absence of manifest error; and provided further that the
Borrower shall not be required to make any payment to any Lender pursuant to
this Section 2.13 as a result of any prepayment of any Euro-Dollar Loan of such
Lender made by the Borrower pursuant to Section 8.02 if such Lender shall not
have complied with the provisions of the second sentence of Section 8.02.
Section 2.14. Computation of Interest and Fees. Interest based on the
Reference Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
Section 2.15. Increased Commitments; Additional Lenders. (a) From time
to time (but no more than twice per calendar year), the Borrower may, upon
notice of not less than 30 days nor more than 45 days to the Administrative
Agent (which shall promptly provide a copy of such notice to the Lenders),
propose to increase the aggregate amount of the Commitments by an amount not
less than $10,000,000 (the amount of any such increase, the "Increased
Commitments"). Each Lender party to this Agreement at such time shall have the
right (but no obligation), for a period of 15 days following receipt of such
notice, to elect by notice to the Borrower and the Administrative Agent to
increase its Commitment by a principal amount which bears the same ratio to the
Increased Commitments as its then Commitment bears to the aggregate Commitments
then existing. Any Lender not responding within 15 days of receipt of such
notice shall be deemed to have declined to increase its Commitment.
(b) If any Lender party to this Agreement shall not elect to increase
its Commitment pursuant to subsection (a) of this Section, the Borrower may,
within 10 days of the Lenders' response, designate one or more of the existing
Lenders
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or other financial institutions acceptable to the Administrative Agent and the
Borrower (which consent of the Administrative Agent and the Borrower shall not
be unreasonably withheld) which at the time agree to (i) in the case of any such
lender that is an existing Lender, increase its Commitment and (ii) in the case
of any other such lender (an "Additional Lender"), become a party to this
Agreement with a Commitment of not less than $10,000,000. The sum of the
increases in the Commitments of the existing Lenders pursuant to this subsection
(b) plus the Commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of the Increased Commitments.
(c) Any increase in the Commitments pursuant to this Section 2.15 shall
be subject to satisfaction of the following conditions:
(i) before and after giving effect to such increase, all
representations and warranties contained in Article 4 shall be true and
correct in all material respects;
(ii) at the time of such increase, no Default shall have occurred
and be continuing or would result from such increase; and
(iii) after giving effect to such increase, the aggregate amount
of all increases in Commitments made pursuant to this Section 2.15 shall
not exceed $250,000,000.
(d) An increase in the aggregate amount of the Commitments pursuant to
this Section 2.15 shall become effective upon the receipt by the Administrative
Agent of (i) an agreement in form and substance satisfactory to the
Administrative Agent signed by the Borrower, by each Additional Lender and by
each other Lender whose Commitment is to be increased, setting forth the new
Commitments of such Lenders and setting forth the agreement of each Additional
Lender to become a party to this Agreement and to be bound by all the terms and
provisions hereof, and (ii) such evidence of the satisfaction of the conditions
set forth in subsection (c) above as the Administrative Agent may reasonably
request.
(e) Upon any increase in the aggregate amount of the Commitments
pursuant to this Section 2.15, within five Domestic Business Days, in the case
of each Group of Base Rate Loans then outstanding, and at the end of the then
current Interest Period with respect thereto, in the case of each Group of Euro-
Dollar Loans then outstanding, the Borrower shall prepay such Group of Loans in
its entirety and, to the extent the Borrower elects to do so and subject to the
conditions specified in Article 3, the Borrower shall reborrow Committed Loans
from the Lenders in proportion to their respective Commitments after giving
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effect to such increase, until such time as all outstanding Committed Loans are
held by the Lenders in such proportion.
Section 2.16. Regulation D Compensation. Each Lender may require the
Borrower to pay, contemporaneously with each payment of interest on the
Euro-Dollar Loans, additional interest on the related Euro-Dollar Loan of such
Lender at a rate per annum determined by such Lender up to but not exceeding the
excess of (i) (A) the applicable London Interbank Offered Rate divided by (B)
one minus the Euro-Dollar Reserve Percentage over (ii) the applicable London
Interbank Offered Rate. Any Lender wishing to require payment of such additional
interest (x) shall so notify the Borrower and the Administrative Agent, in which
case such additional interest on the Euro-Dollar Loans of such Lender shall be
payable to such Lender at the place indicated in such notice with respect to
each Interest Period commencing at least three Euro-Dollar Business Days after
such Lender gives such notice and (y) shall furnish to the Borrower at least
five Euro-Dollar Business Days prior to each date on which interest is payable
on the Euro-Dollar Loans an officer's certificate setting forth the amount to
which such Lender is then entitled under this Section (which shall be consistent
with such Lender's good faith estimate of the level at which the related
reserves are maintained by it). Each such certificate shall be accompanied by
such information as the Borrower may reasonably request as to the computation
set forth therein.
"EURO-DOLLAR RESERVE PERCENTAGE" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "EUROCURRENCY LIABILITIES" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Lender to
United States residents).
Section 2.17. Method of Electing Interest Rates. (a) The Loans included
in each Committed Borrowing shall bear interest initially at the type of rate
specified by the Borrower in the applicable Notice of Committed Borrowing.
Thereafter, the Borrower may from time to time elect to change or continue the
type of interest rate borne by each Group of Loans (subject to subsection (d) of
this Section and the provisions of Article 8), as follows:
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(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business
Day; and
(ii) if such Loans are Euro-Dollar Loans, the Borrower may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans
as Euro-Dollar Loans for an additional Interest Period, subject to
Section 2.13 if any such conversion is effective on any day other than
the last day of an Interest Period applicable to such Loans.
Each such election shall be made by delivering a notice (a "NOTICE OF INTEREST
RATE ELECTION") to the Administrative Agent not later than 1:00 P.M. (New York
City time) on the third Euro-Dollar Business Day before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest
Rate Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such Notice applies, and the remaining portion to which it does not
apply, are each at least $10,000,000 (unless such portion is comprised of Base
Rate Loans). If no such notice is timely received before the end of an Interest
Period for any Group of Euro-Dollar Loans, the Borrower shall be deemed to have
elected that such Group of Loans be converted to Base Rate Loans at the end of
such Interest Period.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion of continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if the Loans resulting from such conversion are
to be Euro-Dollar Loans, the duration of the next succeeding Interest
Period applicable thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest
Period.
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Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Promptly after receiving a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall notify
each Lender of the contents thereof and such Notice of Interest Rate Election
shall not thereafter be revocable by the Borrower.
(d) The Borrower shall not be entitled to elect to convert any Committed
Loans to, or continue any Committed Loans for an additional Interest Period as,
Euro-Dollar Loans if (i) the aggregate principal amounts of any Group of Euro-
Dollar Loans created or continued as a result of such election would be less
than $10,000,000 or (ii) a Default shall have occurred and be continuing when
the Borrower delivers notice of such election to the Administrative Agent.
ARTICLE 3
Conditions
Section 3.01. Closing. The closing hereunder shall occur upon receipt by
the Documentation Agent of the following documents, each dated the Closing Date
unless otherwise indicated:
(a) an opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, special counsel for
the Borrower, substantially in the form of Exhibit E hereto;
(b) an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the Agents,
substantially in the form of Exhibit F hereto and covering such additional
matters relating to the transactions contemplated hereby as the Required Lenders
may reasonably request;
(c) evidence satisfactory to the Documentation Agent that all fees
payable by the Borrower to the Documentation Agent and the Administrative Agent,
in the amounts previously agreed upon between the Borrower and each such Agent,
shall have been paid in full;
(d) all documents the Documentation Agent may reasonably request
relating to the existence of the Borrower, the corporate authority for and the
validity of this Agreement and the Notes and the transactions contemplated
hereby, all in form and substance satisfactory to the Documentation Agent.
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The Documentation Agent shall promptly notify the Borrower, the Lenders and the
Administrative Agent of the Closing Date, and such notice shall be conclusive
and binding on all parties hereto. The Documentation Agent will forward to the
Administrative Agent copies of all documents referred to in Section 3.01
promptly after the Closing Date.
Section 3.02. Credit Events. The obligation of any Lender to make a Loan
on the occasion of any Borrowing is subject to the satisfaction of the following
conditions: (a) the fact that the Closing Date shall have occurred;
(b) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or 2.03, as the case may be;
(c) the fact that, immediately after such Borrowing, the aggregate
outstanding principal amount of the Loans will not exceed the aggregate amount
of the Commitments;
(d) the fact that, immediately before and after such Borrowing, no
Default shall have occurred and be continuing; and
(e) the fact that the representations and warranties of the Borrower
contained in this Agreement (except the representations and warranties set forth
in Sections 4.04(c) and 4.05 as to any matter which has theretofore been
disclosed in writing by the Borrower to the Lenders) shall be true on and as of
the date of such Borrowing; provided that the representations and warranties set
forth in Sections 4.04 and 4.05 shall be deemed to refer to the last day of the
most recent quarter and year for which financial statements have then been
delivered in respect thereof.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the facts specified in
subsections (c), (d) and (e) of this Section.
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ARTICLE 4
Representations and Warranties
The Borrower represents and warrants that:
Section 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, and has all corporate powers and
all material governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
Section 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement and the Notes are within the corporate powers of the Borrower, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Borrower
or of any agreement or instrument evidencing or governing Debt of the Borrower
or a Subsidiary or any other material agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of its Subsidiaries
or result in the creation or imposition of any Lien on any asset of the Borrower
or any of its Subsidiaries.
Section 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and each Note, if and when executed and
delivered in accordance with this Agreement, will constitute a valid and binding
obligation of the Borrower, in each case enforceable in accordance with its
terms except as the same may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and by general principles of equity.
Section 4.04. Financial Information. (a) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of July 28, 1996 and the related
consolidated statements of operations and cash flows for the fiscal year then
ended, reported on by Coopers & Xxxxxxx L.L.P. and set forth in the Borrower's
1996 Form 10-K, a copy of which has been delivered to each of the Lenders,
fairly present, in conformity with generally accepted accounting principles, the
consolidated financial position of the Borrower and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such fiscal year.
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(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of January 25, 1997 and the related unaudited
consolidated statements of operations and cash flows for the six months then
ended, set forth in the Borrower's Latest Form 10-Q, a copy of which has been
delivered to each of the Lenders, fairly present, in conformity with generally
accepted accounting principles applied on a basis consistent with the financial
statements referred to in subsection (a) of this Section, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
six-month period (subject to normal year-end adjustments).
(c) Since July 31, 1996 there has been no material adverse change in the
business, condition (financial or otherwise) or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
Section 4.05. Litigation. There is no action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened against or affecting,
the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official in which there is a reasonable possibility
of an adverse decision which could reasonably be expected to have a Material
Adverse Effect.
Section 4.06. Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan, except if no Material Adverse
Effect could reasonably be expected to result therefrom. No member of the ERISA
Group has (i) sought a waiver of the minimum funding standard under Section 412
of the Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or in respect of any
Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement,
which has resulted or could result in the imposition of a Lien or the posting of
a bond or other security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA, except if no Material Adverse
Effect could reasonably be expected to result therefrom.
Section 4.07. Environmental Matters. The Borrower has reasonably
concluded that the liabilities and costs associated with the effect of
Environmental Laws on the business, operations and properties of the Borrower
and its Subsidiaries (including, without limitation, any capital or operating
expenditures
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required for clean-up or closure of properties presently or previously owned,
any capital or operating expenditures required to achieve or maintain compliance
with environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat, any costs or
liabilities in connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses) could not reasonably be expected
to have a Material Adverse Effect.
Section 4.08. Taxes. The Borrower and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Subsidiary, except to the extent such taxes are being contested in good faith
and are adequately reserved against in accordance with generally accepted
accounting principles. The charges, accruals and reserves on the books of the
Borrower and its Subsidiaries in respect of taxes or other governmental charges
are, in the opinion of the Borrower, adequate.
Section 4.09. Subsidiaries. Each of the Borrower's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
Section 4.10. Regulatory Restrictions on Borrowing. The Borrower is not
an "investment company" within the meaning of the Investment Company Act of
1940, as amended, a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended, or otherwise subject to any regulatory
scheme which restricts its ability to incur debt.
Section 4.11. Full Disclosure. All information in any exhibit, report,
certificate or written statement heretofore furnished by the Borrower to the
Administrative Agent or any Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby, taken as a whole is, and all
such information hereafter furnished by the Borrower to the Administrative Agent
or any Lender, taken as a whole, will be, true and accurate in all material
respects on the date as of which such information is stated or certified and not
incomplete by omitting to state any material fact required to be stated therein
or necessary to
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make the statements made therein, in the light of the circumstances under which
they are made, not misleading, as of the time made or delivered.
ARTICLE 5
Covenants
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable hereunder remains unpaid:
Section 5.01. Information. The Borrower will deliver to the
Administrative Agent for distribution to each of the Lenders:
(a) as soon as available and in any event within 105 days after
the end of each fiscal year of the Borrower, a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end of
such fiscal year and the related consolidated statements of operations
and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported
on in a manner acceptable to the Securities and Exchange Commission by
Coopers & Xxxxxxx or other independent public accountants of nationally
recognized standing;
(b) as soon as available and in any event within 45 days after
the end of each of the first three quarters of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter and the related
consolidated statements of operations and cash flows for such quarter
and for the portion of the Borrower's fiscal year ended at the end of
such quarter, setting forth in the case of such statements of operations
and cash flows, in comparative form the figures for the corresponding
quarter and the corresponding portion of the Borrower's previous fiscal
year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by the chief financial officer, the chief accounting officer
or the treasurer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses 5.01(a) and 5.01(b) above, a
certificate of the chief financial officer, the chief accounting officer
or the treasurer of the Borrower (i) setting forth in reasonable detail
the calculations required to establish whether the Borrower was in
compliance with the
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requirements of Section 5.10 on the date of such financial statements,
(ii) setting forth Net Qualifying Assets as at the date of such
financial statements and Consolidated Net Income for the period of four
consecutive fiscal quarters then ended and (iii) stating whether any
Default exists and is continuing on the date of such certificate and, if
any Default then exists and is continuing, setting forth the details
thereof and the action which the Borrower is taking or proposes to take
with respect thereto;
(d) within five Domestic Business Days after any officer of the
Borrower obtains knowledge of any Default, if such Default is then
continuing, a certificate of the chief financial officer, the chief
accounting officer or the treasurer of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes
to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K,
10-Q and 8-K (or their equivalents) which the Borrower shall have filed
with the Securities and Exchange Commission;
(g) promptly upon the Borrower's obtaining knowledge thereof,
notice of each change in or withdrawal of the ratings of the Borrower's
senior unsecured long-term debt securities by either Xxxxx'x Investors
Service, Inc. and its successors or Standard & Poor's Ratings Services
and its successors and all information relating to such change or
withdrawal; and
(h) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as
the Administrative Agent, at the request of any Lender, may reasonably
request.
Information required to be delivered pursuant to subsections (a), (b), (e) or
(f) of this Section 5.01 shall be deemed to have been delivered on the date on
which the Borrower provides notice to the Lenders that such information has been
posted on the Borrower's website on the Internet at the website address listed
on the signature pages hereof or at xxx.xxx/xxxxx/xxxxxxxx.xxx; provided that
such
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notice may be included in a certificate delivered pursuant to subsection (c) of
this Section 5.01 and provided further that the Borrower shall deliver paper
copies of the information referred to in subsections (a), (b), (e) or (f) of
this Section 5.01 to any Lender who requests such delivery.
Section 5.02. Payment of Obligations. The Borrower will pay and
discharge, and will cause each Subsidiary to pay and discharge, at or before
maturity, all their respective obligations and liabilities in excess of
$10,000,000 in any one case and in the aggregate in excess of $50,000,000
(including, without limitation, tax liabilities and claims of materialmen,
warehousemen and the like which if unpaid might by law give rise to a Lien),
except where the same may be contested in good faith by appropriate proceedings,
and will maintain, and will cause each Subsidiary to maintain, in accordance
with generally accepted accounting principles, appropriate reserves for the
accrual of any of the same.
Section 5.03. Maintenance of Property; Insurance. (a) The Borrower will
keep, and will cause each Subsidiary to keep, all property useful and necessary
in its business in good working order and condition, ordinary wear and tear
excepted.
(b) The Borrower will, and will cause each of its Subsidiaries to,
maintain (either in the name of the Borrower or in such Subsidiary's own name)
with financially sound and responsible insurance companies, insurance on all
their respective properties in at least such amounts, against at least such
risks and with such risk retention as are usually maintained, insured against or
retained, as the case may be, in the same general area by companies of
established repute engaged in the same or a similar business.
Section 5.04. Conduct of Business and Maintenance of Existence. The
Borrower will continue, and will cause each Subsidiary to continue, to engage in
business in the same industry as the industry which the business now conducted
by the Borrower and its Subsidiaries is in, and will preserve, renew and keep in
full force and effect, and will cause each Subsidiary to preserve, renew and
keep in full force and effect their respective corporate existence and their
respective rights, privileges and franchises necessary or desirable in the
normal conduct of business; provided that nothing in this Section 5.04 shall
prohibit (i) the merger of a Subsidiary into the Borrower or the merger or
consolidation of a Subsidiary with or into another Person if the corporation
surviving such consolidation or merger is a Subsidiary and if, in each case,
after giving effect thereto, no Default shall have occurred and be continuing or
(ii) the termination of the corporate existence of any Subsidiary if the
Borrower in good faith determines that such termination is in
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the best interest of the Borrower and is not materially disadvantageous to the
Lenders.
Section 5.05. Compliance with Laws. The Borrower will comply, and cause
each Subsidiary to comply, with all applicable laws, ordinances, rules,
regulations, and requirements of Governmental Authorities (including, without
limitation, Environmental Laws and ERISA and the rules and regulations
thereunder) except where (i) the necessity of compliance therewith is contested
in good faith by appropriate proceedings or (ii) noncompliance could not
reasonably be expected to have a Material Adverse Effect.
Section 5.06. Inspection of Property, Books and Records. The Borrower
will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries shall be made of all dealings
and transactions in relation to its business and activities; and will permit,
and will cause each Subsidiary to permit, representatives of any Lender at such
Lender's expense to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times during normal business hours and as often as may reasonably be desired,
subject to the provisions of Section 9.13.
Section 5.07. Mergers and Sales of Assets. The Borrower will not (i)
consolidate or merge with or into any other Person or (ii) sell, lease or
otherwise transfer, directly or indirectly, all or any substantial part of the
assets of the Borrower and its Subsidiaries, taken as a whole, to any other
Person; providedthat the Borrower may merge with another Person if (x) the
Borrower is the corporation surviving such merger and (y) after giving effect to
such merger, no Default shall have occurred and be continuing.
Section 5.08. Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Borrower for working capital and general corporate
purposes. None of such proceeds will be used in violation of Regulation G, T, U
or X of the Board of Governors of the Federal Reserve System, as in effect from
time to time. None of such proceeds will be used for the acquisition of any
Person unless such acquisition is recommended by the Board of Directors (or
other persons performing similar functions) of such Person.
Section 5.09. Negative Pledge. Neither the Borrower nor any Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except:
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(a) Liens securing obligations in respect of Synthetic Leases,
providedthat the lesser of (i) the value of the collateral subject to such Liens
or (ii) the face amount of the obligations secured thereby shall not exceed
$800,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(c) any Lien (including any such Lien arising pursuant to any capital
lease, conditional sale or other title retention arrangement) on any asset
securing Debt incurred or assumed for the purpose of financing all or any part
of the cost of acquiring or leasing such asset, provided that such Lien attaches
to such asset concurrently with or within 90 days after the acquisition or lease
thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower or a Subsidiary
and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
subsections of this Section, provided that the principal or face amount of such
Debt is not increased and such Debt is not then secured by any additional
assets;
(g) Liens arising in the ordinary course of its business which (i) do
not secure Debt or Derivatives Obligations, (ii) do not secure any obligation in
an amount exceeding $150,000,000 and (iii) do not in the aggregate materially
detract from the value of its assets or materially impair the use thereof in the
operation of its business;
(h) (x) Liens on marketable equity securities securing Derivatives
Obligations entered into in respect of such marketable equity securities and (y)
other Liens on cash, cash equivalents and marketable securities securing
Derivatives Obligations, provided that the aggregate value of the collateral
subject to Liens permitted by this subclause (y) may at no time exceed
$100,000,000;
(i) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Borrower in excess
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of those set forth by regulations promulgated by the Federal Reserve Board, and
(ii) such deposit account is not intended by the Borrower to provide collateral
to the depository institution; and
(j) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount at any date not
to exceed 5% of Consolidated Tangible Net Worth.
Section 5.10. Consolidated Tangible Net Worth. If at the last day of any
fiscal quarter the ratio of Consolidated EBIT to Consolidated Interest Expense
for the period of four consecutive fiscal quarters then ended is less than 6:1,
Consolidated Tangible Net Worth at such date shall be greater than the Minimum
Amount. For purposes of this Section 5.10, "Minimum Amount" means an amount
equal to the sum of (i) $2,800,000,000 plus (ii) an amount equal to 25% of
Consolidated Net Income for each fiscal quarter of the Borrower ending after
April 26, 1997 but prior to the date of determination, in each case, for which
Consolidated Net Income is positive (but with no deduction on account of
negative Consolidated Net Income for any fiscal quarter of the Borrower).
Section 5.11. Ratings. The Borrower has instructed S&P to disclose to
any Lender or the Administrative Agent, upon request, any private rating
assigned by S&P to the Borrower's senior unsecured long term debt securities.
The Borrower will take all actions necessary or that the Administrative Agent or
any Lender may request to ensure that any such rating will at all times be
available to any Lender or the Administrative Agent, upon request.
ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of any Loan or
shall fail to pay within five Domestic Business Days of the due date thereof any
interest, any fees or any other amount payable hereunder;
(b) the Borrower shall fail to observe or perform any covenant contained
in Sections 5.07, 5.08, and 5.10, or any covenant contained in Section 5.09,
solely with respect to Liens securing Debt or Derivative Obligations;
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(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by subsections
(a) or (b) above) for 30 days after written notice thereof has been given to the
Borrower by the Administrative Agent at the request of any Lender;
(d) any representation, warranty, certification or statement made by the
Borrower in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been incorrect
in any material respect when made (or deemed made);
(e) the Borrower or any Subsidiary shall fail to make any payment in
respect of any Material Financial Obligations when due or within any applicable
grace period;
(f) any event or condition shall occur which results in the acceleration
of the maturity of any Material Debt;
(g) the Borrower or any Material Subsidiary shall commence a voluntary
Insolvency Proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing;
(h) an involuntary Insolvency Proceeding shall be commenced against the
Borrower or any Material Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Borrower or any Material Subsidiary under
the federal bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $50,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV of ERISA by any member of the
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ERISA Group, any plan administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $50,000,000;
(j) judgments or orders for the payment of money, which individually or
in the aggregate (net of applicable insurance for which the insurer has
acknowledged coverage) shall exceed $50,000,000 shall be rendered against the
Borrower or any Material Subsidiary and such judgments or orders shall continue
unsatisfied and unstayed for a period of 45 days; or
(k) any person or group of persons (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under said Act) of 35% or more of the
outstanding shares of common stock of the Borrower; or, during any period of 12
consecutive calendar months, individuals who were directors of the Borrower on
the first day of such period shall cease to constitute a majority of the board
of directors of the Borrower (other than as a result of death or disability);
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Lenders, by notice to the Borrower terminate the Commitments and
they shall thereupon terminate, and (ii) if requested by Lenders holding more
than 60% of the aggregate principal amount of the Loans, by notice to the
Borrower declare the Loans (together with accrued interest thereon) to be, and
the Loans shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; provided that in the case of any of the Events of
Default specified in clause 6.01(g) (other than a failure generally to pay debts
as they become due, or the taking of any corporate action to authorize the same)
or 6.01(h) above with respect to the Borrower, without any notice to the
Borrower or any other act by the Administrative Agent or the Lenders, the
Commitments shall thereupon terminate and the Loans (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower.
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Section 6.02. Notice of Default. The Administrative Agent shall give
written notice to the Borrower under Section 6.01(c) promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Lender hereby
irrevocably (subject to Section 7.09) appoints, designates and authorizes each
Agent to take such action on its behalf under the provisions of this Agreement
and to exercise such powers and perform such duties as are expressly delegated
to such Agent by the terms of this Agreement, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement, neither Agent shall have any duties or
responsibilities, except those expressly set forth herein, nor shall either
Agent have or be deemed to have any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against either
Agent.
Section 7.02. Delegation of Duties. Each Agent may execute any of its
duties under this Agreement by or through agents, employees or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. Neither Agent shall be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects with reasonable care.
Section 7.03. Liability of Agents. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of the Lenders for any recital, statement,
representation or warranty made by the Borrower or any Subsidiary or Affiliate,
or any officer thereof, contained in this Agreement, or in any certificate,
report, statement or other document referred to or provided for in, or received
by either Agent under or in connection with, this Agreement, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries or
Affiliates.
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Section 7.04. Reliance by Agents. Each Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Borrower), independent accountants and other experts selected by such
Agent in good faith. Each Agent shall be fully justified in failing or refusing
to take any action under this Agreement unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Each Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
in accordance with a request or consent of the Required Lenders and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of the Lenders.
Section 7.05. Notice of Default. Each Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid to
such Agent for the account of the Lenders, unless such Agent shall have received
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default and stating that such notice is a "notice of default".
Each Agent will notify the Lenders of its receipt of any such notice. The
Administrative Agent shall take such action with respect to such Default as may
be requested by the Required Lenders in accordance with Article 6; provided,
however, that unless and until the Administrative Agent has received any such
request, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it
shall deem advisable or in the best interest of the Lenders.
Section 7.06. Credit Decision. Each Lender acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that no
act by either Agent hereinafter taken, including any review of the affairs of
the Borrower and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Lender. Each
Lender represents to each Agent that it has, independently and without reliance
upon any Agent- Related Person and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all applicable
Lenders regulatory laws relating to the transactions contemplated hereby, and
made its own decision to
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enter into this Agreement and to extend credit to the Borrower hereunder. Each
Lender also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement,
and to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Borrower. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by either
Agent, such Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Borrower which may come into the possession of any of the Agent-Related Persons.
Section 7.07. Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), pro
rata, from and against any and all Indemnified Liabilities; provided, however,
that no Lender shall be liable for the payment to the Agent-Related Persons of
any portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender shall reimburse each Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by such
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, or any document contemplated by or
referred to herein, to the extent that such Agent is not reimbursed for such
expenses by or on behalf of the Borrower; provided that to the extent
indemnification payments made by the Lenders pursuant to this Section 7.07 are
subsequently recovered from or for the account of the Borrower, such Agent shall
promptly refund such previously paid indemnification payments to the Lenders .
The undertaking in this Section shall survive the payment of all obligations
hereunder and the resignation or replacement of one or both Agents.
Section 7.08. Agents in Individual Capacities. Each Agent and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Borrower and its Subsidiaries and Affiliates as though Citicorp USA, Inc.
("Citicorp") and Xxxxxx Guaranty Trust Company of New York ("XXXXXX")
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were not Agents hereunder and without notice to or consent of the Lenders. The
Lenders acknowledge that, pursuant to such activities, each Agent or its
Affiliates may receive information regarding the Borrower or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Borrower or such Subsidiary) and acknowledge that neither Agent
shall be under any obligation to provide such information to them. With respect
to its Loans, each of Xxxxxx and Citicorp shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though it
were not an Agent or the Issuing Lender, and the terms "Lender" and "Lenders"
include Xxxxxx and Citicorp in their individual capacities.
Section 7.09. Successor Agents. Each Agent may resign as Agent upon 30
days' notice to the Lenders. If either Agent resigns under this Agreement, the
Required Lenders, with the consent of the Borrower (such consent not to be
unreasonably withheld), shall appoint from among the Lenders a successor agent
for the Lenders. If no successor agent is appointed prior to the effective date
of the resignation of either Agent, such Agent may appoint, after consulting
with the Lenders and the Borrower, a successor agent from among the Lenders.
Upon the acceptance of its appointment as successor agent hereunder, such
successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall include such successor agent and the
retiring Agent's appointment, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article 7 and Section 9.03 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement. If
no successor agent has accepted appointment as Agent by the date which is 30
days following a retiring Agent's notice of resignation, the retiring Agent's
resignation shall nevertheless thereupon become effective and the Lenders shall
perform all of the duties of such Agent hereunder until such time, if any, as
the Required Lenders appoint a successor agent as provided for above.
Section 7.10. Co-Agents. None of the Banks identified on the facing page
or the signature pages of this Agreement as a "Co-Agent" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than those applicable to all Banks as such. Without limiting the foregoing, none
of the Banks so identified as "Co-Agent" shall have or be deemed to have any
fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied and will not rely on any of the Banks so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
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ARTICLE 8
Change in Circumstances
Section 8.01. Basis for Determining Interest Rate Unfair. If on or prior
to the first day of any Interest Period for any Euro-Dollar Loan or Money Market
LIBOR Loan, the Administrative Agent shall have determined that dollar deposits
in the principal amounts of such Loans are not generally available in the London
interbank market, or that the rates at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to the Lenders of making
or maintaining their Euro-Dollar Loans during such Interest Period, or that
reasonable means do not exist for ascertaining the London Interbank Offered
Rate, the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Lenders, whereupon until the Administrative Agent notifies the
Borrower that the circumstances giving rise to such suspension no longer exist,
(i) the obligations of the Lenders to make Euro-Dollar Loans, or to continue or
convert outstanding Loans as or into Euro-Dollar Loans, shall be suspended and
(ii) each outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan
on the last day of the then current Interest Period applicable thereto. Unless
the Borrower notifies the Administrative Agent at least two Domestic Business
Days before the date of any Fixed Rate Borrowing for which a Notice of Borrowing
has previously been given that it elects not to borrow on such date, (i) if such
Fixed Rate Borrowing is a Euro-Dollar Borrowing, such Borrowing shall instead be
made as a Base Rate Borrowing and (ii) if such Fixed Rate Borrowing is a Money
Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing
shall bear interest for each day from and including the first day to but
excluding the last day of the Interest Period applicable thereto at the Base
Rate for such day.
Section 8.02. Illegality. If, on or after the date of this Agreement,
the adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its Euro-Dollar Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency, shall make it unlawful or impossible for any Lender (or its
Euro-Dollar Lending Office) to make, maintain or fund its Euro-Dollar Loans and
such Lender shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Lenders and the Borrower,
whereupon until the circumstances giving rise to such suspension no longer exist
(at which time such Lender shall so notify the Borrower and the Administrative
Agent), the obligation of such Lender to make Euro-Dollar Loans, or to continue
or convert outstanding
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Loans as or into Euro-Dollar Loans, shall be suspended. Before giving any notice
to the Administrative Agent pursuant to this Section, such Lender shall
designate a different Euro-Dollar Lending Office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. If such notice is given, each
Euro-Dollar Loan of such Lender then outstanding shall be converted to a Base
Rate Loan either (a) on the last day of the then current Interest Period
applicable to such Euro-Dollar Loan if such Lender may lawfully continue to
maintain and fund such Loan as a Euro-Dollar Loan to such day or (b) immediately
if such Lender shall determine that it may not lawfully continue to maintain and
fund such Loan as a Euro-Dollar Loan to such day.
Section 8.03. Increased Cost and Reduced Return. (a) If on or after (x)
the date hereof, in the case of any Euro-Dollar Loan or any obligation to make
Euro-Dollar Loans or (y) the date of the related Money Market Quote, in the case
of any Money Market Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
with respect to any Euro-Dollar Loan any such requirement with respect to which
such Lender is entitled to compensation during the relevant Interest Period
under Section 2.16), special deposit, insurance assessment or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, any Lender (or its Applicable Lending Office) or shall impose on
any Lender (or its Applicable Lending Office) or on the London interbank market
any other condition affecting its Fixed Rate Loans, its Note (if any) or its
obligation to make Fixed Rate Loans, and the result of any of the foregoing is
to increase the cost to such Lender (or its Applicable Lending Office) of making
or maintaining any Fixed Rate Loan, or to reduce the amount of any sum received
or receivable by such Lender (or its Applicable Lending Office) under this
Agreement or under its Note (if any) with respect thereto, by an amount deemed
by such Lender to be material, then, within 15 days after written demand by such
Lender (with a copy to the Administrative Agent), the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender shall have determined that, after the date hereof, the
adoption of any applicable law, rule or regulation regarding capital adequacy,
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or any change in any such law, rule or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on capital
of such Lender (or its Parent) as a consequence of such Lender's obligations
hereunder to a level below that which such Lender (or its Parent) could have
achieved but for such adoption, change, request or directive (taking into
consideration its policies with respect to capital adequacy) by an amount deemed
by such Lender to be material, then from time to time, within 15 days after
demand by such Lender (with a copy to the Administrative Agent), the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender (or its Parent) for such reduction.
(c) Each Lender will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender. Any Lender claiming
compensation under this Section shall provide the Borrower with a certificate
setting forth the additional amount or amounts to be paid to it hereunder and in
reasonable detail the event or events entitling such Lender to compensation and
the method of calculation of such compensation, which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. If any Lender shall have
successfully contested the change in law, rule, regulation, interpretation,
administration, request or directive, as the case may be, for which the Borrower
has paid any amount under this Section 8.03 and as result of such contest such
Lender shall have received a refund of such amount (or any portion thereof),
such Lender shall refund to the Borrower such amount or portion thereof, net of
any costs incurred by such Lender with respect to such contest. Nothing in the
immediately preceding sentence shall be construed to require any Lender to
contest any such change. If any Lender claiming any increased cost or reduction
has changed its Applicable Lending Office as provided in this subsection or the
Borrower has elected that the provisions of Section 8.05 shall apply to such
Lender, the calculation of such increased costs or reduction payable by the
Borrower to such Lender pursuant to this Section for any date after the date
such change in Applicable Lending Office or such election has been made shall
take into account the effect of such change or election.
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55
Section 8.04. Taxes. (a) For the purposes of this Section, the following
terms have the following meanings:
"TAXES" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this Agreement or under any Note, and all liabilities with
respect thereto, excluding (i) in the case of each Lender and the Administrative
Agent, taxes imposed on its income, and franchise or similar taxes imposed on
it, by a jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or in which its principal executive
office is located or, in the case of each Lender, in which its Applicable
Lending Office is located and (ii) in the case of each Lender, any United States
withholding tax imposed on such payments but only to the extent that such Lender
is subject to United States withholding tax at the time such Lender first
becomes a party to this Agreement.
"OTHER TAXES" means any present or future stamp or documentary taxes and
any other excise or property taxes, or similar charges or levies, which arise
from any payment made pursuant to this Agreement or under any Note or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
Note.
(b) Any and all payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section) such Lender or the Administrative Agent (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions, (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, (iv) the
Borrower shall also pay to each Lender or the Administrative Agent for the
account of such Lender, at the time interest is paid, all additional amounts
which such Lender specifies as necessary to preserve the after-tax yield the
Lender would have received if such Taxes or Other Taxes had not been imposed and
(v) the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 9.01, the original or a certified copy of a receipt
evidencing payment thereof.
(c) The Borrower agrees to indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
50
56
jurisdiction on amounts payable under this Section) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
This indemnification shall be paid within 15 days after such Lender or the
Administrative Agent (as the case may be) makes demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Administrative Agent (but only so long as such Lender remains lawfully
able to do so), shall provide the Borrower and the Administrative Agent with
Internal Revenue Service form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States is a
party which exempts the Lender from United States withholding tax or reduces the
rate of withholding tax on payments of interest for the account of such Lender
or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States.
(e) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form pursuant to Section 8.04(d) (unless such
failure is due to a change in treaty, law or regulation occurring subsequent to
the date on which such form originally was required to be provided), such Lender
shall not be entitled to indemnification under Section 8.04(b) or (c) with
respect to Taxes imposed by the United States solely as a result of such
failure; providedthat if a Lender, which is otherwise exempt from or subject to
a reduced rate of withholding tax, becomes subject to Taxes or additional Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender shall reasonably request to assist such Lender to
recover such Taxes or additional Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section, then such Lender will change the
jurisdiction of its Applicable Lending Office if, in the sole judgment of such
Lender, such change (i) will eliminate or reduce any such additional payment
which may thereafter accrue and (ii) is not disadvantageous to such Lender.
Section 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans.
If (i) the obligation of any Lender to make, or to continue or convert
outstanding Loans as or to, Euro-Dollar Loans has been suspended pursuant to
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57
Section 8.02 or (ii) any Lender has demanded compensation under Section 8.03 or
8.04 with respect to its Euro-Dollar Loans and the Borrower shall, by at least
five Euro-Dollar Business Days' prior notice to such Lender through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Lender, then, unless and until the circumstances giving rise to
such suspension or demand for compensation no longer exist, all Loans which
would otherwise be made by such Lender as (or continued as or converted to)
Euro-Dollar Loans shall instead be Base Rate Loans (on which interest and
principal shall be payable contemporaneously with the related Fixed Rate Loans
of the other Lenders). If such Lender notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist, the principal amount of each such Base Rate Loan shall be
converted into a Euro-Dollar Loan on the first day of the next succeeding
Interest Period applicable to the related Euro-Dollar Loans of the other
Lenders.
Section 8.06. Substitution of Lender. If (i) the obligation of any
Lender to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Lender has demanded compensation under Section 8.03 or 8.04, the
Borrower shall have the right, with the assistance of the Administrative Agent,
to seek a mutually satisfactory substitute financial institution (which may be
one or more of the Lenders) to purchase the outstanding Loans of such Lender and
assume the Commitment of such Lender.
ARTICLE 9
Miscellaneous
Section 9.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telex, facsimile
transmission or similar writing) and shall be given to such party: (a) in the
case of the Borrower or the Agents, at the applicable address, facsimile number
or telex number set forth on the signature pages hereof, (b) in the case of any
Lender, at its address, facsimile number or telex number set forth in its
Administrative Questionnaire or (c) in the case of any party, such other
address, facsimile number or telex number as such party may hereafter specify
for the purpose by notice to the Administrative Agent and the Borrower. Each
such notice, request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by facsimile
transmission, when transmitted to the facsimile number specified in this Section
and confirmation of receipt is received, (iii) if given by mail, 72 hours after
such communication is deposited in
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58
the mails with first class postage prepaid, addressed as aforesaid or (iv) if
given by any other means, when delivered at the address specified in this
Section; provided that notices to the Administrative Agent under Article 2 or
Article 8 shall not be effective until actually received by the Administrative
Agent at the address specified for the Administrative Agent pursuant to this
Section.
Section 9.02. No Waiver. No failure or delay by either Agent or any
Lender in exercising any right, power or privilege hereunder or under any Note
shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03. Expenses; Indemnification. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses of the Agents, including (without
duplication) the fees and disbursements of special counsel for the Agents, in
connection with the preparation and administration of this Agreement, any waiver
or consent hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by each Agent and each Lender, including (without duplication) the fees
and disbursements of outside counsel and the allocated cost of inside counsel,
in connection with such Event of Default and collection, bankruptcy, insolvency
and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Agent and each Lender, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto and whether or not such
proceeding is initiated by a party to this Agreement) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder (collectively, "Indemnified Liabilities"); provided
that no Indemnitee shall have the right to be indemnified hereunder for such
Indemnitee's own gross negligence or willful misconduct as determined by a court
of competent jurisdiction.
Section 9.04. Sharing of Set-offs. Each Lender agrees that if it shall,
by exercising any right of set-off or counterclaim or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest due with
respect to
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59
any Loan made by it which is greater than the proportion received by any other
Lender in respect of the aggregate amount of principal and interest due with
respect to any Loans made by such other Lender, the Lender receiving such
proportionately greater payment shall purchase such participations in the Loans
made by the other Lenders and such other adjustments shall be made, as may be
required so that all such payments of principal and interest with respect to the
Loans made by the Lenders shall be shared by the Lenders pro rata; provided that
nothing in this Section shall impair the right of any Lender to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness of the Borrower other than its
indebtedness hereunder. The Borrower agrees, to the fullest extent it may
effectively do so under applicable law, that any holder of a participation in a
Loan whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
Section 9.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request specified
by Section 6.01 to direct the Agent to declare the Loans due and payable
pursuant to the provisions of Section 6.01, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender or such Affiliate to or for
the credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Agreement and the Loans
made by such Lender, whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. Each Lender
agrees promptly to notify the Borrower after any such set off and application,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its Affiliates under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its Affiliates may
have.
Section 9.06. Amendments and Waivers. Any provision of this Agreement or
the Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Borrower and the Required Lenders (and, if the
rights or duties of either Agent are affected thereby, by such Agent); provided
that no such amendment or waiver shall, unless signed by all the Lenders, (i)
except as contemplated by Section 2.15, increase or decrease the Commitment of
any Lender (except for a ratable decrease in the
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60
Commitments of all Lenders) or subject any Lender to any obligation in addition
to the obligations to which such Lender is subject hereunder on the Effective
Date, (ii) reduce the principal of or rate of interest on any Loan or any fees
hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or any interest thereon or any fees hereunder or for any
scheduled termination of any Commitment or (iv) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Loans, or the
number of Lenders, which shall be required for the Lenders or any of them to
take any action under this Section or any other provision of this Agreement.
Section 9.07. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations under this
Agreement without the prior written consent of all Lenders.
(b) Any Lender may at any time grant to one or more Lenders or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans. In the event of any such grant by a Lender of a
participating interest to a Participant, whether or not upon notice to the
Borrower and the Agents, such Lender shall remain responsible for the
performance of its obligations hereunder, and the Borrower and the Agents shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement pursuant to
which any Lender may grant such a participating interest shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of the Borrower hereunder including, without limitation, the right to approve
any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that such Lender will not
agree to any modification, amendment or waiver of this Agreement described in
clause (i), (ii), or (iii) of Section 9.06 without the consent of the
Participant. The Borrower agrees that each Lender shall be entitled to the
benefits of Section 2.13 and Article 8 without regard to whether it has granted
any participating interests, and that all amounts payable to a Lender for the
account of a Participant under Section 2.13 and Article 8 shall be determined as
if such Lender had not granted a participating interest to such Participant. An
assignment or other transfer which is not permitted by subsection (c) or (d)
below shall be given effect for purposes of this Agreement only to the extent of
a participating interest granted in accordance with this subsection (b).
(c) Any Lender may at any time assign to one or more Eligible Assignees
all, or a proportionate part (equivalent to an initial Commitment of not
55
61
less than $10,000,000) of all, of its rights and obligations under this
Agreement and the Notes, and each such Eligible Assignee shall assume such
rights and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit G hereto executed by such Eligible Assignee
and such transferor Lender, with (and subject to) the subscribed consent of the
Borrower and the Administrative Agent (which consents shall not be unreasonably
withheld); provided that if an Eligible Assignee is an Affiliate of such
transferor Lender or was a Lender immediately prior to such assignment, no such
consent shall be required; and provided further that such assignment may, but
need not, include rights of the transferor Lender in respect of outstanding
Money Market Loans. Upon execution and delivery of such instrument and payment
by such Eligible Assignee to such transferor Lender of an amount equal to the
purchase price agreed between such transferor Lender and such Eligible Assignee,
such Eligible Assignee shall be a Lender party to this Agreement and shall have
all the rights and obligations of a Lender with a Commitment as set forth in
such instrument of assumption, and the transferor Lender shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (c), the transferor Lender, the Administrative Agent
and the Borrower shall make appropriate arrangements so that, if required, a new
Note is issued to the Eligible Assignee. In connection with any such assignment,
the transferor Lender shall pay to the Administrative Agent an administrative
fee for processing such assignment in the amount of $2,500. If the Eligible
Assignee is not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrower and the Agent certification as
to exemption from deduction or withholding of any United States federal income
taxes in accordance with Section 8.04.
(d) Any Lender may at any time assign all or any portion of its rights
under this Agreement and the Notes to a Federal Reserve Bank. No such assignment
shall release the transferor Lender from its obligations hereunder.
(e) No Eligible Assignee, Participant or other transferee of any
Lender's rights shall be entitled to receive any greater payment under Section
8.03 or 8.04 than such Lender would have been entitled to receive with respect
to the rights transferred, unless such transfer is made with the Borrower's
prior written consent or by reason of the provisions of Section 8.02, 8.03 or
8.04 requiring such Lender to designate a different Applicable Lending Office
under certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
(f) The Administrative Agent, on behalf of the Borrower, shall maintain
at the address of the Administrative Agent a copy of each Assignment and
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62
Assumption Agreement delivered to it and a record of the names and addresses of
the Lenders and the Commitments of and principal amounts of the Loans owing to,
each Lender from time to time. Such record shall be conclusive, in the absence
of manifest error, and the Borrower, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement,
notwithstanding any notice to the contrary or anything to the contrary in this
Agreement. Any assignment of any Loan or other right or obligation hereunder
shall be effective, in the absence of manifest error, only upon appropriate
records with respect thereto being made by the Administrative Agent,
notwithstanding anything to the contrary in this Agreement. Such records shall
be available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
Section 9.08. Collateral. Each of the Lenders represents to each Agent
and each of the other Lenders that it in good faith is not relying upon any
"margin stock" (as defined in Regulation U) as collateral in the extension or
maintenance of the credit provided for in this Agreement.
Section 9.09. Governing Law; Submission to Jurisdiction. This Agreement
and each Note shall be governed by and construed in accordance with the laws of
the State of New York, without reference to its conflicts of law principles. The
Borrower hereby submits to the nonexclusive jurisdiction of the United States
District Court for the Southern District of New York and of any New York State
court sitting in New York City for purposes of all legal proceedings arising out
of or relating to this Agreement or the transactions contemplated hereby. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
Section 9.10. Counterparts; Integration; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, oral or written, relating to the subject matter hereof. This
Agreement shall become effective upon receipt by the Documentation Agent of
counterparts hereof signed by each of the parties hereto (or, in the case of any
party as to which an executed counterpart shall not have been received, receipt
by the Documentation Agent in form satisfactory to it of telegraphic, telex,
facsimile
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63
or other written confirmation from such party of execution of a counterpart
hereof by such party).
Section 9.11. Consequences of Effectiveness; Transitional Provisions.
(a) On the Effective Date, the commitments under the Existing Agreement shall
terminate without further action by any party thereto. The Administrative Agent
will promptly notify each of the other parties hereto and to the Existing
Agreement of the effectiveness of this Agreement.
(b) Concurrently with the effectiveness of this Agreement, the Borrower
shall (i) prepay in full (including accrued and unpaid interest thereon to, but
excluding, the Effective Date) (x) all "Money Market Loans" outstanding under
the Existing Agreement made by "Banks" under the Existing Agreement which are
not Lenders hereunder and (y) all Committed Loans outstanding under the Existing
Agreement and (ii) surrender, or cause to be surrendered, for cancellation any
"Letters of Credit" issued and outstanding under the Existing Agreement. Any
"Money Market Loans" outstanding under the Existing Agreement on the Effective
Date made by Lenders parties to this Agreement shall remain outstanding as Money
Market Loans hereunder on the terms previously established with respect thereto
under the Existing Agreement. Concurrently with the effectiveness of this
Agreement, the Borrower shall pay all accrued and unpaid letter of credit and
facility fees under the Existing Agreement to, but excluding, the Effective
Date.
(c) The Lenders which are parties to the Existing Agreement, comprising
the "Required Banks" as defined therein, hereby waive any requirement of notice
of termination of the "Commitments" as defined therein pursuant to Section 2.09
thereof and any restriction on prepayment of "Money Market Loans" as defined
therein to the extent necessary to give effect to the subsections (a) and (b)
above, provided that any such prepayment of such Money Market Loans shall be
subject to Section 2.13 of the Existing Agreement.
Section 9.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENTS AND
THE LENDERS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 9.13. Confidentiality. Each of the Agents and the Lenders shall
keep confidential any information provided by Borrower or any Subsidiary or
Affiliate of the Borrower and clearly identified as confidential; provided that
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64
nothing herein shall prevent any Agent or any Lender from disclosing such
information (i) to its officers, directors, employees, agents, attorneys,
auditors (internal or independent), accountants and Affiliates who have a need
to know such information in accordance with customary banking practices and who
receive such information having been made subject to the restrictions set forth
in this Section, (ii) upon the order of a court or administrative agency, (iii)
upon request or demand of any regulatory agency or authority having jurisdiction
over such party and authority to compel disclosure of such information, (iv)
which has become publicly available without breach of any agreement between the
parties hereto, including this Agreement, (v) as necessary for the exercise of
any remedy under this Agreement, (vi) subject to provisions similar to those
contained in this Section, to any prospective Participant or Eligible Assignee,
(vii) when required to do so in accordance with the provisions of any applicable
law, (viii) to the extent reasonably required in connection with any litigation
or proceeding between the Borrower and any Agent, any Lender or their respective
Affiliates or (ix) as to any Lender or any of its Affiliates, as expressly
permitted under the terms of any document or agreement regarding confidentiality
to which the Borrower or any Subsidiary is party or is deemed party with such
Lender or such Affiliate.
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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.
CISCO SYSTEMS, INC.
By: [SIG]
-------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
Address: Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Website:
xxxx://xxx.xxxxx.xxx
Attention: Treasurer
CITICORP USA, INC., as Administrative
Agent
By:
-------------------------------------
Name:
Title:
Address: Citibank, N.A.
0 Xxxxx Xxxxxx/0xx Xxxxx,
Xxxx 0
Xxxx Xxxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxxxxx Xx Xxxxx
66
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.
CISCO SYSTEMS, INC.
By:
-------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
Address: Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Website:
xxxx://xxx.xxxxx.xxx
Attention: Treasurer
CITICORP USA, INC., as Administrative
Agent
By: [SIG]
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
Address: Citibank, N.A.
0 Xxxxx Xxxxxx/0xx Xxxxx,
Xxxx 0
Xxxx Xxxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxxxxx Xx Xxxxx
67
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CISCO SYSTEMS, INC.
By: [SIG]
-------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
Address: Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Website:
xxxx://xxx.xxxxx.xxx
Attention: Treasurer
CITICORP USA, INC., as Administrative
Agent
By:
-------------------------------------
Name:
Title:
Address: Citibank, N.A.
0 Xxxxx Xxxxxx/0xx Xxxxx,
Xxxx 0
Xxxx Xxxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxxxxx Xx Xxxxx
68
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CISCO SYSTEMS, INC.
By:
-------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
Address: Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Website:
xxxx://xxx.xxxxx.xxx
Attention: Treasurer
CITICORP USA, INC., as Administrative
Agent
By: [SIG]
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
Address: Citibank, N.A.
0 Xxxxx Xxxxxx/0xx Xxxxx,
Xxxx 0
Xxxx Xxxxxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxxxxxx Xx Xxxxx
69
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Documentation Agent
By: [SIG]
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Address: X.X. Xxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telex: 177615 MGT UT
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Co-Agent
By:
-------------------------------------
Name:
Title:
Address:
Telephone:
Facsimile:
Attention:
THE CHASE MANHATTAN BANK, as
Co-Agent
By:
-------------------------------------
Name:
Title:
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
70
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Documentation Agent
By:
-------------------------------------
Name:
Title:
Address: X.X. Xxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telex: 177615 MGT UT
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Co-Agent
By: [SIG]
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx Xx.
Title: Vice President
Address: 000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxxx XxXxxxxxx
THE CHASE MANHATTAN BANK, as
Co-Agent
By:
-------------------------------------
Name:
Title:
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
71
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK, as
Documentation Agent
By:
-------------------------------------
Name:
Title:
Address: X.X. Xxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telex: 177615 MGT UT
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION, as Co-Agent
By:
-------------------------------------
Name:
Title:
Address:
Telephone:
Facsimile:
Attention:
THE CHASE MANHATTAN BANK, as
Co-Agent
By: [SIG]
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
61
72
Commitments:
$45,000,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By: [SIG]
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
$45,000,000 CITICORP USA, INC.
By:
-------------------------------------
Name:
Title:
$40,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By:
-------------------------------------
Name:
Title:
$40,000,000 THE CHASE MANHATTAN BANK
By:
-------------------------------------
Name:
Title:
73
Commitments:
$45,000,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:
-------------------------------------
Name:
Title:
$45,000,000 CITICORP USA, INC.
By: [SIG]
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Attorney-in-Fact
$40,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By:
-------------------------------------
Name:
Title:
$40,000,000 THE CHASE MANHATTAN BANK
By:
-------------------------------------
Name:
Title:
74
Commitments:
$45,000,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:
-------------------------------------
Name:
Title:
$45,000,000 CITICORP USA, INC.
By:
-------------------------------------
Name:
Title:
$40,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By: [SIG]
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx, Xx.
Title: Vice President
$40,000,000 THE CHASE MANHATTAN BANK
By:
-------------------------------------
Name:
Title:
75
Commitments:
$45,000,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:
-------------------------------------
Name:
Title:
$45,000,000 CITICORP USA, INC.
By:
-------------------------------------
Name:
Title:
$40,000,000 BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By:
-------------------------------------
Name:
Title:
$40,000,000 THE CHASE MANHATTAN BANK
By: [SIG]
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
76
$30,000,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By: [SIG]
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
$30,000,000 DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
$30,000,000 MARINE MIDLAND BANK
By:
-------------------------------------
Name:
Title:
$30,000,000 ROYAL BANK OF CANADA
By:
-------------------------------------
Name:
Title:
77
$30,000,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
-------------------------------------
Name:
Title:
$30,000,000 DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By: [SIG]
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
By: [SIG]
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
$30,000,000 MARINE MIDLAND BANK
By:
-------------------------------------
Name:
Title:
$30,000,000 ROYAL BANK OF CANADA
By:
-------------------------------------
Name:
Title:
78
$30,000,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
-------------------------------------
Name:
Title:
$30,000,000 DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
$30,000,000 MARINE MIDLAND BANK
By: [SIG]
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
$30,000,000 ROYAL BANK OF CANADA
By:
-------------------------------------
Name:
Title:
79
$30,000,000 BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
-------------------------------------
Name:
Title:
$30,000,000 DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
$30,000,000 MARINE MIDLAND BANK
By:
-------------------------------------
Name:
Title:
$30,000,000 ROYAL BANK OF CANADA
By: [SIG]
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Manager
80
$30,000,000 THE SUMITOMO BANK, LIMITED
By: [SIG]
-------------------------------------
Name: Xxxx Xxxxxx
Title: General Manager
$30,000,000 UNION BANK OF SWITZERLAND
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
$25,000,000 BANKBOSTON, N.A.
By:
-------------------------------------
Name:
Title:
$25,000,000 THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
81
$30,000,000 THE SUMITOMO BANK, LIMITED
By:
-------------------------------------
Name:
Title:
$30,000,000 UNION BANK OF SWITZERLAND
By: [SIG]
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Treasurer
By: [SIG]
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
$25,000,000 BANKBOSTON, N.A.
By:
-------------------------------------
Name:
Title:
$25,000,000 THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
82
$30,000,000 THE SUMITOMO BANK, LIMITED
By:
-------------------------------------
Name:
Title:
$30,000,000 UNION BANK OF SWITZERLAND
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
$25,000,000 BANKBOSTON, N.A.
By: [SIG]
-------------------------------------
Name: Xxxxxx X. Head, Jr.
Title: Vice President
$25,000,000 THE BANK OF NEW YORK
By:
-------------------------------------
Name:
Title:
83
$30,000,000 THE SUMITOMO BANK, LIMITED
By:
-------------------------------------
Name:
Title:
$30,000,000 UNION BANK OF SWITZERLAND
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
$25,000,000 BANKBOSTON, N.A.
By:
-------------------------------------
Name:
Title:
$25,000,000 THE BANK OF NEW YORK
By: [SIG]
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
84
$25,000,000 CREDITO ITALIANO SpA
By: [SIG]
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: First Vice President & Deputy
Manager
By: [SIG]
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
$25,000,000 THE SUMITOMO TRUST & BANKING
CO., LTD., LOS ANGELES AGENCY
By:
-------------------------------------
Name:
Title:
$25,000,000 MELLON BANK, N.A.
By:
-------------------------------------
Name:
Title:
85
$25,000,000 CREDITO ITALIANO SpA
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
$25,000,000 THE SUMITOMO TRUST & BANKING
CO., LTD., LOS ANGELES AGENCY
By: [SIG]
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
$25,000,000 MELLON BANK, N.A.
By:
-------------------------------------
Name:
Title:
86
$25,000,000 CREDITO ITALIANO SpA
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
$25,000,000 THE SUMITOMO TRUST & BANKING
CO., LTD., LOS ANGELES AGENCY
By:
-------------------------------------
Name:
Title:
$25,000,000 MELLON BANK, N.A.
By: [SIG]
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
87
$25,000,000 XXXXX FARGO BANK, N.A.
By: [SIG]
-------------------------------------
Name: Xxxxx X. Xxx
Title: Vice President
By: [SIG]
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
-----------------
Total: $500,000,000
88
PRICING SCHEDULE
Each of "Euro-Dollar Margin" and "Facility Fee Rate" for any date, the
rate set forth in the column below such term and in the row corresponding to the
Pricing Level that applies at such date:
EURO-DOLLAR FACILITY FEE
PRICING LEVEL MARGIN RATE
----------------------------------------
Level I+ .1100% .0500%
----------------------------------------
Level I .1200% .0550%
----------------------------------------
Level II+ .1200% .0550%
----------------------------------------
Level II .1275% .0600%
----------------------------------------
Level III+ .1275% .0600%
----------------------------------------
Level III .1300% .0700%
----------------------------------------
Level IV+ .1300% .0700%
----------------------------------------
Level IV .1700% .0800%
----------------------------------------
Level V+ .1900% .1100%
----------------------------------------
Level V .2500% .1250%
----------------------------------------
Level VI .3500% .2000%
----------------------------------------
For purposes of this Schedule, the following terms have the following
meanings:
"APPLICABLE NET INCOME" means, at any date, Consolidated Net Income for
the period of four consecutive fiscal quarters reflected in the then most recent
certificate delivered by the Borrower pursuant to Section 5.01(c); provided that
for any period during which a Default exists under Section 5.01(c), Applicable
Net Income shall be deemed to be less than $1,000,000,000.
89
"APPLICABLE NET QUALIFYING ASSETS" means, at any date, the amount of Net
Qualifying Assets reflected in the then most recent certificate delivered by the
Borrower pursuant to Section 5.01(c); provided that for any period during which
a Default exists under Section 5.01(c), Applicable Net Qualifying Assets shall
be deemed to be less than $2,000,000,000.
"LEVEL I+ PRICING" applies at any date if, at such date (a) the
Borrower's senior unsecured long-term debt securities are rated A+ or higher by
S&P or A1 or higher by Moody's (subject to the concluding paragraph of this
Schedule) and(b) Applicable Net Income is $2,500,000,000 or greater and
Applicable Net Qualifying Assets is $5,000,000,000 or greater and (c) such date
is an Upgrade Date.
"LEVEL I PRICING" applies at any date if, at such date, Test (a) for
Level I+ Pricing is met but either Test (b) or Test (c) is not.
"LEVEL II+ PRICING" applies at any date if, at such date (i) (a) the
Borrower's senior unsecured long-term debt securities are rated A or higher by
S&P or A2 or higher by Moody's (subject to the concluding paragraph of this
Schedule) and (b) Applicable Net Income is $2,000,000,000 or greater
andApplicable Net Qualifying Assets is $4,000,000,000 or greater and (c) such
date is an Upgrade Date and (ii) Test (a) for Level I+ Pricing is not met.
"LEVEL II PRICING" applies at any date if, at such date, Test (a) for
Level II+ Pricing is met but either Test (b) or Test (c) is not.
"LEVEL III+ PRICING" applies at any date if, at such date, (i)(a) the
Borrower's senior unsecured long-term debt securities are rated A- or higher by
S&P or A3 or higher by Moody's (subject to the concluding paragraph of this
Schedule) and (b) Applicable Net Income is $1,500,000,000 or greater
andApplicable Net Qualifying Assets is $3,000,000,000 or greater and (c) such
date is an Upgrade Date and (ii) Test (a) for Level II+ Pricing is not met.
"LEVEL III PRICING" applies at any date if, at such date, Test (a) for
Level III+ Pricing is met but either Test (b) or Test (c) is not.
2
90
"LEVEL IV+ PRICING" applies at any date if, at such date, (i)(a) the
Borrower's senior unsecured long-term debt securities are rated BBB+ or higher
by S&P or Baa1 or higher by Moody's (subject to the concluding paragraph of this
Schedule) and (b) Applicable Net Income is $1,000,000,000 or greater
andApplicable Net Qualifying Assets is $2,500,000,000 or greater and (c) such
date is an Upgrade Date and (ii) Test (a) Level III+ Pricing is not met.
"LEVEL IV PRICING" applies at any date if, at such date, Test (a) for
Level IV+ Pricing is met but either Test (b) or Test (c) is not.
"LEVEL V+ PRICING" applies at any date if, at such date, (i)(a) the
Borrower's senior unsecured long-term debt securities are rated BBB- or higher
by S&P or Baa3 or higher by Moody's (subject to the concluding paragraph of this
Schedule) and (b) Applicable Net Income is $1,000,000,000 or greater
andApplicable Net Qualifying Assets is $2,000,000,000 or greater and (c) such
date is and Upgrade Date and (ii) Test (a) for Level IV+ Pricing is not met.
"LEVEL V PRICING" applies at any date if, at such date, Test (a) for
Level V+ Pricing is met but either Test (b) or Test (c) is not.
"LEVEL VI PRICING" applies at any date if, at such date, no other
Pricing Level applies.
"MOODY'S" means Xxxxx'x Investors Service, Inc. and its successors.
"PRICING LEVEL" refers to each of the respective levels set forth in the
column headed "Pricing Level" in the table above.
"S&P" means Standard & Poor's Ratings Services and its successors.
"TEST" means the respective criteria set forth in clause (or subclause)
(a) or (b) in the definition of a particular Pricing Level above.
"UPGRADE DATE" means any date after the date on which the Borrower
delivers the documents required to be delivered under Section 5.01(c) for the
fiscal quarter ending January 24, 1998.
3
91
The credit ratings to be utilized for purposes of this Schedule are those
assigned by S&P or Moody's to the senior unsecured long-term debt securities of
the Borrower without third-party credit enhancement (including without
limitation any private rating) and any rating assigned to any other debt
security of the Borrower shall be disregarded. The rating in effect at any date
is that in effect at the close of business on such date. In the case of split
ratings from S&P and Moody's, the rating to be used to determine which Pricing
Level is the higher of the two (e.g. A-/Baa1 meets Test (a) for Level III+
Pricing), provided that if the split is more than one full category, the average
(or the higher of two intermediate ratings) shall be used (e.g., A+/A3 meets
Test (a) for Level II+ Pricing but not for Level I+ Pricing).
4
92
EXHIBIT A - Note
NOTE
New York, New York
___________ __, 199_
For value received, CISCO SYSTEMS, INC., a California corporation (the
"Borrower"), promises to pay to the order of ______________________ (the
"Lender"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to the
Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of Citicorp USA, Inc., 1 Court Street, 0xx Xxxxx, Xxxx 0,
Xxxx Xxxxxx Xxxx, XX, 00000.
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated
as of July 2, 1997 among Cisco Systems, Inc., the banks listed on the signature
pages thereof, Citicorp USA, Inc., as Administrative Agent, and Xxxxxx Guaranty
Trust Company of New York, as Documentation Agent (as the same may be amended
from time to time, the "CREDIT AGREEMENT"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to
5
93
the Credit Agreement for provisions for the prepayment hereof and the
acceleration of the maturity hereof.
CISCO SYSTEMS, INC.
By______________________________
Name:
Title:
2
94
LOANS AND PAYMENTS OF PRINCIPAL
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Amount Type Amount of
of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
--------------------------------------------------------------------------
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3
95
EXHIBIT B - Money Market Quote Request
Form of Money Market Quote Request
[Date]
To: Citicorp USA, Inc. (the "Administrative Agent")
From: Cisco Systems, Inc.
Re: Credit Agreement (the "Credit Agreement") dated as of July 2, 1997
among Cisco Systems, Inc., the Lenders listed on the signature pages
thereof, Citicorp USA, Inc., the Administrative Agent, and Xxxxxx
Guaranty Trust Company of New York, as Documentation Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement
that we request Money Market Quotes for the following proposed Money Market
Borrowing(s):
Date of Borrowing: __________________
Principal Amount(1) Interest Period(2)
---------------- ------------------
$
----------------
(1) Amount must be $10,000,000 or a larger multiple of $1,000,000.
(2) Not less than one month (LIBOR Auction) or not less than 14 days or more
than 366 days (Absolute Rate Auction), subject to the provisions of the
definition of Interest Period. No more than three different Interest
Periods.
96
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.] Terms
used herein have the meanings assigned to them in the Credit Agreement.
CISCO SYSTEMS, INC.
By____________________________
Name:
Title:
2
97
EXHIBIT C - Invitation for Money Market Quotes
Form of Invitation for Money Market Quotes
To: [Name of Lender]
Re: Invitation for Money Market Quotes to [Name of Borrower] (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of July 2,
1997 among Cisco Systems, Inc., the Lenders parties thereto, Citicorp USA, Inc.,
as Administrative Agent, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent, we are pleased on behalf of the Borrower to invite you to
submit Money Market Quotes to the Borrower for the following proposed Money
Market Borrowing(s):
Date of Borrowing: __________________
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin] [Absolute
Rate]. [The applicable base rate is the London Interbank Offered Rate.]
Please respond to this invitation by no later than [1:00 P.M.] [9:30
A.M.] (San Francisco, California time) on [date].
Citicorp USA, Inc., as Administrative Agent
By________________________________
Authorized Officer
98
EXHIBIT D - Money Market Quote
Form of Money Market Quote
To: Citicorp USA, Inc., as Administrative Agent
Re: Money Market Quote to Cisco Systems, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 19__, we hereby make the following Money Market Quote on the
following terms:
1. Quoting Lender: ________________________________
2. Person to contact at Quoting Lender:
-----------------------------
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market [Absolute
Amount** Period*** [Margin****] Rate*****]
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed
$____________.]**
----------
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the
(notes continued on following page)
99
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of July 2, 1997 among Cisco Systems, Inc., the Lenders listed on the
signature pages thereof, yourselves, as Administrative Agent, and Xxxxxx
Guaranty Trust Company of New York, as Documentation Agent irrevocably obligates
us to make the Money Market Loan(s) for which any offer(s) are accepted, in
whole or in part.
Very truly yours,
[NAME OF LENDER]
Dated:_______________ By:__________________________
Authorized Officer
----------
amount the Lender is willing to lend. Bids must be made for $10,000,000 or a
larger multiple of $1,000,000.
*** Not less than one month or not less than 7 days or more than 365 days, as
specified in the related Invitation. No more than five bids are permitted for
each Interest Period.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000 of 1%)
and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
2
100
EXHIBIT E - Opinion of Counsel for the Borrower
OPINION OF
COUNSEL FOR THE BORROWER
[LETTERHEAD OF XXXXXXX, PHLEGER & XXXXXXXX LLP]
______________, 1997
To the Agents and the Lenders
party to the Credit Agreement
referred to below
Re: Cisco Systems, Inc.
-------------------
Ladies and Gentlemen:
This opinion letter is furnished to you pursuant to Section 3.01(b) of
the Credit Agreement dated as of July 2, 1997 (the "CREDIT AGREEMENT") among
Cisco Systems, Inc., a California corporation, as borrower (the "COMPANY"), the
Lenders party thereto (collectively, the "LENDERS"), Citicorp USA, Inc., as
Administrative Agent, Xxxxxx Guaranty Trust Company of New York, as
Documentation Agent and Bank of America National Trust and Savings Association
and the Chase Manhattan Bank, as Co-Agents. We have acted as counsel for the
Company in connection with the Credit Agreement. Unless otherwise defined
herein, terms used herein shall have the meanings assigned to them in the Credit
Agreement.
In connection with this opinion letter, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
corporate records, certificates, including certificates of public officials, and
other instruments as we have deemed necessary or advisable for purposes of this
opinion letter, including those relating to the authorization, execution and
delivery of the Credit Agreement. In addition, we have examined the following
documents (the items referred to in subclauses (i) and (ii) below herein
referred to as the "CREDIT DOCUMENTS"):
101
(i) an executed copy of the Credit Agreement;
(ii) the form of Note to be delivered by the Company in favor of
a Lender pursuant to the Credit Agreement;
(iii) the Articles of Incorporation and the Bylaws of the
Company, each as in effect on the date hereof;
(iv) an executed copy of the certificate of the [Assistant]
Secretary of the Company dated July 2, 1997 certifying: a true copy of
the resolutions of the Board of Directors of the Company, adopted on
__________, 1997, authorizing, among other things, the execution,
delivery and performance of the Credit Documents, and the incumbency,
authority and true signatures of the officers of the Company authorized
to sign the Credit Documents and any other documents and certificates
delivered in connection therewith;
(v) an executed copy of the certificate (the "Officer's
Certificate") of the Secretary [and the ______________] of the Company,
dated July 2, 1997 ; and
(vi) such other documents as we have deemed necessary or
appropriate as a basis for the opinions hereinafter expressed.
We have also examined photostatic or facsimile copies of the agreements
identified in Exhibit A to the Officer's Certificate (the "Material Agreements")
[and the consents received from ___________ in connection with the Material
Agreements]. In our examination and review we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the authenticity of the
documents submitted to us as originals, the conformity to the original documents
of all documents submitted to us as certified, facsimile or photostatic copies,
and the authenticity of the originals of such copies. As to any facts material
to the opinions hereinafter expressed which we did not independently establish
or verify, we have relied without investigation upon certificates, statements
and representations of representatives of the Company. Regarding documents
executed by parties other than the Company, we have assumed (i) that each such
other party had the power to enter into and perform all its obligations
thereunder, (ii) the due authorization, execution and delivery of such documents
by each such party, and (iii) that such documents constitute the legal, valid
and binding obligations of each such party.
2
102
With respect to our opinion in paragraph 1 below, we are relying solely
on our review and examination of the certificate received from the Secretary of
State of the State of California, without further investigation of the corporate
records of the Company.
Based upon and subject to the foregoing, and subject to the further
assumptions, limitations, qualifications and exceptions set forth herein, we are
of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of California with the corporate
power and authority to own its properties and to carry on its business as, to
our knowledge, it is now conducted.
2. The Company has the corporate power and authority to enter into and
perform the Credit Documents, and has taken all necessary corporate action to
authorize the execution, delivery and performance of the Credit Documents.
3. No consents, approvals or authorizations of, or notices to or filings
with, any governmental authority or agency under the laws of the State of
California or the laws of the United States, as presently in effect and
interpreted, are required or necessary on the part of the Company in connection
with the execution and delivery by the Company of the Credit Documents.
4. The Credit Agreement is, and the Notes when executed and delivered by
the Company under the Credit Agreement will be, the legal, valid and binding
obligations of the Company, enforceable by the Agents and the Lenders against
the Company in accordance with their respective terms.
5. The execution or delivery by the Company of the Credit Documents will
not (i) violate or be in conflict with any provision of the Articles of
Incorporation or Bylaws of the Company, (ii) to our knowledge, violate or be in
conflict with any federal or California law having applicability to the Company
as presently in effect and interpreted, (iii) to our knowledge, violate or
contravene any judgment, decree, injunction or order of any federal or
California court, or any arbitrator or governmental agency or authority, having
jurisdiction over the Company or its properties or by which the Company may be
bound, or (iv) constitute a material breach of, or result in a material default
under, any term or provision of any of the Material Agreements.
6. We have no knowledge of any pending litigation or other proceedings
against the Company or its properties before any court, arbitrator or
governmental agency or
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authority that challenge the legality, validity or enforceability of the Credit
Documents or which, if determined adversely to the Company, would be likely to
have a material adverse effect on the Company.
Whenever a statement herein is qualified by the expressions "known to
us," "to our knowledge," "we are not aware" or a similar phrase with respect to
our knowledge of matters of fact, it is intended to mean that our knowledge is
based upon the records, documents, instruments and certificates described above
and the current actual knowledge of the attorneys in this Firm who have devoted
substantive attention to the transactions contemplated by the Credit Documents
(but not including any constructive or imputed notice of any information) and
that we have not otherwise undertaken any independent investigations for the
purpose of rendering this opinion.
This opinion is limited to the laws of the State of California; the laws
of the State of New York (as to paragraph 4 only); and applicable federal laws
of the United States (as to paragraphs 3 and 5 only), and we express no opinion
herein with respect to the effect or applicability of the laws of other
jurisdictions. Without limiting the generality of the foregoing, the opinion in
paragraph 4 is expressed only as a matter of New York law.
Our opinions in paragraph 3 above and in clause (ii) of paragraph 5
above are limited to laws and regulations normally applicable to transactions of
the type contemplated in the Credit Documents and do not extend to licenses,
permits and approvals necessary for the conduct of the Company's business. In
addition and without limiting the previous sentence, we express no opinion
herein with respect to the effect of any land use, environmental or similar law,
any state or federal antitrust law, state or federal securities laws, or any
local law. Further, we express no opinion as to compliance or noncompliance by
any Lender with any federal, state or other law (i) requiring any Lender to be
licensed as a bank, finance company or other type of financial institution, (ii)
pertaining to matters regulating the assets held by the Lender on the basis of
portfolio requirements or any Lender's capitalization, such as loan limits and
capital adequacy requirements, and (iii) otherwise applicable to any Lender and
relating to its legal or regulatory status or the nature of its business.
The opinions set forth above are subject to the following
qualifications, assumptions, limitations and exceptions:
(a) The enforceability of the Company's obligations under the Credit
Documents may be subject to or limited by (i) bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent transfer and other similar
laws affecting the rights of creditors
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generally; and (ii) general equitable principles (whether relief is sought in a
proceeding at law or in equity), including, without limitation, concepts of
materiality, reasonableness, good faith, and fair dealing.
(b) We express no opinion as to provisions of the Credit Documents
purporting to establish an evidentiary standard or to authorize conclusive
determinations by any Agent or any Lender or any other Person or allowing any
Agent or any Lender or any other Person to make determinations in its sole
discretion.
(c) We also express no opinion as to:
(1) the enforceability of provisions of the Credit Documents
pursuant to which the Company agrees to make payments without set-off, defense
or counterclaim;
(2) the enforceability of provisions relating to
indemnification, contribution or exculpation, to the extent any such provision
is contrary to public policy or prohibited by law (including, without
limitation, federal and state securities laws);
(3) any provision providing for the exclusive jurisdiction of a
particular court or purporting to waive rights to trial by jury, service of
process or objections to the laying of venue or to forum on the basis of forum
non conveniens, in connection with any litigation arising out of or pertaining
to the Credit Documents;
(4) provisions contained in the Credit Documents purporting to
waive either illegality as a defense to the performance of contract obligations
or any other defense to such performance which cannot, as a matter of law, be
effectively waived;
(5) any provision of the Credit Documents insofar as it provides
that any Person purchasing a participation from a Lender or other Person may
exercise set-off or similar rights with respect to such participation or that a
Lender or other Person may exercise set-off or similar rights other than in
accordance with applicable law;
(6) any provision of the Credit Documents permitting
modification thereof only by means of an agreement in writing signed by the
parties thereto;
(7) any provision of the Credit Documents requiring payment of
attorneys' fees, except to the extent a court determines such fees to be
reasonable; and
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(8) the effect of the law of any jurisdiction other than the
State of New York which limits the rates of interest legally chargeable or
collectible.
(d) We wish to point out that any Lender, as the holder of a Note, may
be required to prove the outstanding amount thereof.
The opinions expressed herein are solely for your benefit and for the
benefit of your successors and assigns pursuant to the Credit Agreement in
connection with the above transactions, and such opinions may not be relied on
in any manner or for any purpose by any other Person. In addition, this opinion
is rendered as of the date hereof and speaks only to the Agents and the original
Lenders, and it shall not be deemed to have been updated to any date upon which
any such other Person may rely hereon. Further, we do not undertake to advise
you or such other Person of matters which occur subsequent to the date hereof
and which affect the opinions expressed herein.
Very truly yours,
XXXXXXX, XXXXXXX & XXXXXXXX LLP
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EXHIBIT F - Opinion of Special Counsel for the Agents
OPINION OF
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
FOR THE AGENTS
________________, 199_
To the Lenders and the Agents
Referred to Below
c/x Xxxxxx Guaranty Trust Company
of New York, as Documentation Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"CREDIT AGREEMENT") dated as of July 2, 1997 among Cisco Systems, Inc., a
California corporation (the "Borrower"), the Lenders listed on the signature
pages thereof (the "Lenders"), Citicorp USA, Inc., as Administrative Agent, and
Xxxxxx Guaranty Trust Company of New York, as Documentation Agent, and have
acted as special counsel for the Agents for the purpose of rendering this
opinion pursuant to Section 3.01(b) of the Credit Agreement. Terms defined in
the Credit Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
107
We have assumed that the execution, delivery and performance by the
Borrower of the Credit Agreement and the Notes are within its corporate powers
and have been duly authorized by all necessary action.
Upon the basis of the foregoing, we are of the opinion that the Credit
Agreement constitutes a valid and binding agreement of the Borrower and, if and
when issued in accordance with the Credit Agreement, each Note will constitute a
valid and binding obligation of the Borrower, in each case enforceable in
accordance with its terms except as the same may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and by general
principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Lender is located which limits the rate of
interest that such Lender may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
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EXHIBIT G - Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of ____, 1995 among [NAME OF ASSIGNOR] (the
"ASSIGNOR"), [NAME OF ASSIGNEE] (the "ASSIGNEE"), CISCO SYSTEMS, INC. (the
"BORROWER"), and CITICORP USA, INC., as Administrative Agent.
WHEREAS, this Assignment and Assumption Agreement (the "AGREEMENT")
relates to the Credit Agreement dated as of July 2, 1997 among the Borrower, the
Assignor and the other Lenders party thereto, as Lenders, the Administrative
Agent, and Xxxxxx Guaranty Trust Company of New York, as Documentation Agent (as
amended from time to time, the "CREDIT AGREEMENT");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrower such that the aggregate principal
amount of such Loans outstanding at any time shall not exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under the
Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans, and
the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and
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assumes all of the obligations of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, including the purchase from the Assignor of the
corresponding portion of the principal amount of the Committed Loans made by the
Assignor outstanding at the date hereof. Upon the execution and delivery hereof
by the Assignor, the Assignee, [the Borrower and, the Administrative Agent,] and
the payment of the amounts specified in Section 3 required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Lender under the Credit
Agreement with a Commitment in an amount equal to the Assigned Amount, and (ii)
the Commitment of the Assignor shall, as of the date hereof, be reduced by a
like amount and the Assignor released from its obligations under the Credit
Agreement to the extent such obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to the Assignor.
SECTION 2. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof in Federal funds the amount heretofore agreed between them(1). It is
understood that commitment and/or facility fees accrued to the date hereof are
for the account of the Assignor and such fees accruing from and including the
date hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Credit Agreement
which is for the account of the other party hereto, it shall receive the same
for the account of such other party to the extent of such other party's interest
therein and shall promptly pay the same to such other party.
[SECTION 3. Consent of the Borrower and the Administrative Agent. This
Agreement is conditioned upon the consent of the Borrower and the Administrative
Agent pursuant to Section 9.07(c) of the Credit Agreement. The execution of this
Agreement by the Borrower and the Administrative Agent is evidence of this
consent. Pursuant to Section 9.07(c), the Borrower agrees, upon the Assignee's
request, to execute and deliver a Note payable to the order of the Assignee to
evidence the assignment and assumption provided for herein.]
SECTION 4. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the
----------------
(1) Amount should combine principal together with accrued interest and breakage
compensation, if any, to be paid by the Assignee, net of any portion of any
upfront fee to be paid by the Assignor to the Assignee. It may be preferable
in an appropriate case to specify these amounts generally or by formula
rather than as a fixed sum.
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solvency, financial condition, or statements of the Borrower, or the validity
and enforceability of the obligations of the Borrower in respect of the Credit
Agreement or any Note. The Assignee acknowledges that it has, independently and
without reliance on the Assignor, and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement and will continue to be responsible for making its own
independent appraisal of the business, affairs and financial condition of the
Borrower.
SECTION 5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR]
By__________________________
Name:
Title:
[NAME OF ASSIGNEE]
By__________________________
Name:
Title:
[CISCO SYSTEMS, INC.
By__________________________
Name:
Title:]
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[CITICORP USA, INC., as Administrative
Agent
By__________________________
Name:
Title:]
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NOTE
New York, New York
July 2, 1997
For value received, CISCO SYSTEMS, INC., a California corporation
(the "BORROWER"), promises to pay to the order of BANKBOSTON, N.A. (the
"LENDER"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to
the Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest on the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of Citicorp USA, Inc., 1 Court Street, 0xx Xxxxx, Xxxx 0,
Xxxx Xxxxxx Xxxx, XX, 00000.
All Loans made by the Lender, the respective types and maturities thereof
and all repayments of the principal thereof shall be recorded by the Lender
and, if the Lender so elects in connection with any transfer or enforcement
hereof, appropriate notations to evidence the foregoing information with
respect to each such Loan then outstanding may be endorsed by the Lender on the
schedule attached hereto, or on a continuation of such schedule attached to and
made a part hereof; provided that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated as
of July 2, 1997 among Cisco Systems, Inc., the banks listed on the signature
pages thereof, Citicorp USA, Inc., as Administrative Agent, and Xxxxxx Guaranty
Trust Company of New York, as Documentation Agent (as the same may be amended
from time to time, the "CREDIT AGREEMENT"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
CISCO SYSTEMS, INC.
By /s/ X.X. XXXXX
----------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
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LOANS AND PAYMENTS OF PRINCIPAL
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of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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NOTE
New York, New York
July 2, 1997
For value received, CISCO SYSTEMS, INC., a California corporation (the
"BORROWER"), promises to pay to the order of DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH (the "LENDER"), for the account of its Applicable
Lending Office, the unpaid principal amount of each Loan made by the Lender to
the Borrower pursuant to the Credit Agreement referred to below on the maturity
date provided for in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of each such Loan on the dates and at
the rate or rates provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the Unites States in
Federal or other immediately available funds at the office of Citicorp USA,
Inc., 1 Court Street, 0xx Xxxxx, Xxxx 0, Xxxx Xxxxxx Xxxx, XX, 00000.
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender
on the schedule attached hereto, or on a continuation of such schedule attached
to and made a part hereof; provided that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated
as of July 2, 1997 among Cisco systems, Inc., the banks listed on the signature
pages thereof, Citicorp USA, Inc., as Administrative Agent, and Xxxxxx Guaranty
Trust Company of New York, as Documentation Agent (as the same may be amended
from time to time, the "CREDIT AGREEMENT"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
CISCO SYSTEMS, INC.
By /s/ X. X. XXXXX
------------------------------
NAME: Xxxxx X. Xxxxx
Treasurer
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LOANS AND PAYMENTS OF PRINCIPAL
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of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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NOTE
New York, New York
July 2, 1997
For value received, CISCO SYSTEMS, INC., a California corporation (the
"BORROWER"), promises to pay to the order of UNION BANK OF SWITZERLAND (the
"LENDER"), for the account of its Applicable Lending Office, the unpaid
principal amount of each Loan made by the Lender to the Borrower pursuant to
the Credit Agreement referred to below on the maturity date provided for in the
Credit Agreement. The Borrower promises to pay interest of the unpaid principal
amount of each such Loan on the dates and at the rate or rates provided for in
the Credit Agreement. All such payments of principal and interest shall be made
in lawful money of the United States in Federal or other immediately available
funds at the office of Citicorp USA, Inc., 1 Court Street, 0xx Xxxxx, Xxxx 0,
Xxxx Xxxxxx Xxxx, XX, 00000.
All Loans made by the Lender, the respective types and maturities
thereof and all repayments of the principal thereof shall be recorded by the
Lender and, if the Lender so elects in connection with any transfer or
enforcement hereof, appropriate notations to evidence the foregoing information
with respect to each such Loan then outstanding may be endorsed by the Lender
on the schedule attached hereto, or on a continuation of such schedule attached
to and made a part hereof; provided that the failure of the Lender to make any
such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated
as of July 2, 1997 among Cisco Systems, Inc., the banks listed on the signature
pages thereof, Citicorp USA, Inc., as Administrative Agent, and Xxxxxx Guaranty
Trust Company of New York, as Documentation Agent (as the same may be amended
from time to time, the "CREDIT AGREEMENT"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
CISCO SYSTEMS, INC.
By: /s/ X.X. XXXXX
----------------------
NAME: XXXXX X. XXXXX
TITLE: TREASURER
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LOANS AND PAYMENTS OF PRINCIPAL
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of of Principal Maturity Notation
Date Loan Loan Repaid Date Made By
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