Exhibit 10.4
CONFORMED COPY
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US$270,000,000 364-DAY AMENDED AND RESTATED
COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 1, 2002
among
PERKINELMER, INC.
THE LENDERS NAMED HEREIN
and
JPMORGAN CHASE BANK
as Administrative Agent
X.X. XXXXXX EUROPE LIMITED
as London Agent
FLEET NATIONAL BANK
as Co-Documentation Agent
WACHOVIA BANK, N.A.
as Co-Documentation Agent
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X.X. XXXXXX SECURITIES INC.
as Advisor, Lead Arranger and Bookrunner
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CS&M 6701-109
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms..................................................5
SECTION 1.02. Terms Generally...............................................17
SECTION 1.03. Exchange Rates................................................17
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments...................................................18
SECTION 2.02. Loans.........................................................18
SECTION 2.03. Competitive Bid Procedure.....................................19
SECTION 2.04. Standby Borrowing Procedure...................................21
SECTION 2.05. Swingline Loans...............................................22
SECTION 2.06. Facility Fees.................................................23
SECTION 2.07. Conversion and Continuation of Standby Borrowings.............24
SECTION 2.08. Repayment of Loans; Evidence of Debt..........................25
SECTION 2.09. Interest on Loans.............................................25
SECTION 2.10. Default Interest..............................................26
SECTION 2.11. Alternate Rate of Interest....................................26
SECTION 2.12. Termination and Reduction of Commitments......................27
SECTION 2.13. Prepayment....................................................27
SECTION 2.14. Reserve Requirements; Change in Circumstances.................28
SECTION 2.15. Change in Legality............................................29
SECTION 2.16. Indemnity.....................................................30
SECTION 2.17. Pro Rata Treatment............................................30
SECTION 2.18. Sharing of Setoffs............................................31
SECTION 2.19. Payments......................................................31
SECTION 2.20. Duty to Mitigate; Assignment of Commitments Under
Certain Circumstances.........................................32
SECTION 2.21. Taxes.........................................................32
SECTION 2.22. Additional Reserve Costs......................................34
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ARTICLE III
Representations and Warranties
SECTION 3.01. Corporate Existence and Power..................................35
SECTION 3.02. Corporate and Governmental Authorization; Contravention........35
SECTION 3.03. Binding Effect.................................................35
SECTION 3.04. Financial Information..........................................35
SECTION 3.05. Litigation.....................................................36
SECTION 3.06. Compliance with ERISA..........................................36
SECTION 3.07. Taxes..........................................................36
SECTION 3.08. Subsidiaries...................................................36
SECTION 3.09. Representations and Warranties of Each Borrowing Subsidiary....37
SECTION 3.10. Federal Reserve Regulations....................................37
SECTION 3.11. Investment Company Act; Public Utility Holding Company Act.....37
SECTION 3.12. Environmental and Safety Matters...............................38
SECTION 3.13. No Material Adverse Change.....................................38
SECTION 3.14. Solvency.......................................................38
ARTICLE IV
Conditions of Effectiveness and Lending
SECTION 4.01. All Borrowings.................................................38
SECTION 4.02. Effectiveness..................................................39
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary...................40
ARTICLE V
COVENANTS
SECTION 5.01. Information....................................................40
SECTION 5.02. Corporate Existence; Businesses and Properties.................41
SECTION 5.03. Insurance......................................................42
SECTION 5.04. Litigation and Other Notices...................................42
SECTION 5.05. Maintaining Records; Access to Properties and Inspections......42
SECTION 5.06. Consolidated EBITDA to Consolidated Interest Expense Ratio.....42
SECTION 5.07. Net Debt to Capitalization Ratio...............................42
SECTION 5.08. Negative Pledge................................................42
SECTION 5.09. Consolidations, Mergers and Sales of Assets....................43
SECTION 5.10. Ownership of Margin Stock......................................44
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ARTICLE VI
EVENTS OF DEFAULT
ARTICLE VII
GUARANTEE
ARTICLE VIII
THE AGENTS
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices........................................................50
SECTION 9.02. Survival of Agreement..........................................51
SECTION 9.03. Binding Effect.................................................51
SECTION 9.04. Successors and Assigns.........................................51
SECTION 9.05. Expenses; Indemnity............................................53
SECTION 9.06. Applicable Law.................................................54
SECTION 9.07. Waivers; Amendment.............................................54
SECTION 9.08. Entire Agreement...............................................55
SECTION 9.09. Severability...................................................55
SECTION 9.10. Counterparts...................................................55
SECTION 9.11. Headings.......................................................55
SECTION 9.12. Right of Setoff................................................55
SECTION 9.13. Jurisdiction; Consent to Service of Process....................55
SECTION 9.14. Waiver of Jury Trial...........................................56
SECTION 9.15. Addition of Borrowing Subsidiaries.............................56
SECTION 9.16. Confidentiality................................................56
SECTION 9.17. Collateral.....................................................57
SECTION 9.18. Interest Rate Limitation.......................................57
SECTION 9.19. Conversion of Currencies.......................................57
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SCHEDULES
Schedule 2.01 Commitments
Schedule 3.08 Subsidiaries
Schedule 3.12 Environmental Exceptions (Facilities Owned by the Company and
its Subsidiaries)
EXHIBITS
Exhibit A-1 Competitive Bid Request
Exhibit A-2 Invitation by Administrative Agent for Competitive Bids
Exhibit A-3 Competitive Bid by a Lender
Exhibit A-4 Competitive Bid Accept/Reject Letter
Exhibit A-5 Standby Borrowing Request
Exhibit B Administrative Questionnaire (US Dollars)
Exhibit B-1 Administrative Questionnaire (Foreign Currency)
Exhibit C Assignment and Acceptance
Exhibit D-1 Opinion of Xxxx X. Xxxxx, Esq. with respect to the Company
Exhibit D-2 Opinion of Counsel for Borrowing Subsidiary with respect to
the Borrowing Subsidiary
Exhibit E Borrowing Subsidiary Agreement
Exhibit F Mandatory Costs Rate
US$270,000,000 364-DAY AMENDED AND RESTATED COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT (the "Agreement")
dated as of March 1, 2002, among PERKINELMER, INC., a Massachusetts
corporation (the "Company"), the Borrowing Subsidiaries (as such
term is defined herein; together with the Company, the "Borrowers"),
the lenders listed in Schedule 2.01 (the "Lenders"), JPMORGAN CHASE
BANK (as successor to THE CHASE MANHATTAN BANK), a New York banking
corporation, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent") and X.X. XXXXXX EUROPE LIMITED
(as successor to CHASE MANHATTAN INTERNATIONAL LIMITED), a company
organized under the laws of England and Wales, as European agent for
the Lenders (in such capacity, the "London Agent").
The Lenders have been requested to extend credit to the Borrowers to
enable them to borrow on a standby revolving credit basis on and after the date
hereof and at any time and from time to time prior to the Termination Date a
principal amount not in excess of US$270,000,000 at any time outstanding. The
Lenders have also been requested to provide a procedure pursuant to which the
Borrowers may invite the Lenders to bid on an uncommitted basis on short-term
borrowings by the Borrowers. The proceeds of all such borrowings are to be used
by the Borrowers for general corporate purposes, including to finance
acquisitions and to provide working capital for use in the ordinary course of
their businesses. The Lenders are willing to extend such credit on the terms and
subject to the conditions herein set forth. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in Article I.
This Agreement amends and restates the US$300,000,000 364-Day Amended and
Restated Competitive Advance and Revolving Credit Facility Agreement dated as of
March 2, 2001, among the Company, the Borrowing Subsidiaries, the lenders party
thereto and the Administrative Agent (the "Existing Credit Agreement").
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
"ABR LOAN" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative Questionnaire
in the form of Exhibit B hereto.
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"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly or indirectly controls or is controlled by or is
under common control with the person specified.
"AGENTS" shall mean, collectively, the Administrative Agent and the London
Agent.
"AGREEMENT CURRENCY" has the meaning assigned to such term in Section
9.19(b).
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to the greater of (a) the
Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate" shall mean
the rate of interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office in New
York City; each change in the Prime Rate shall be effective on the date such
change is publicly announced as effective. "Federal Funds Effective Rate" shall
mean, for any day, the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as released on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so released for any day which
is a Business Day, the arithmetic average (rounded upwards to the next 1/100th
of 1%), as determined by the Administrative Agent, of the quotations for the day
of such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it. If for any reason the
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"APPLICABLE AGENT" shall mean (a) with respect to a Loan or Borrowing
denominated in Dollars and with respect to any payment hereunder that does not
relate to a particular Loan or Borrowing, the Administrative Agent and (b) with
respect to a Loan or Borrowing denominated in any Foreign Currency, the London
Agent.
"APPLICABLE CREDITOR" has the meaning assigned to such term in
Section 9.19(b).
"APPLICABLE PERCENTAGE" shall mean on any date, with respect to
Eurocurrency Standby Loans or with respect to the Facility Fee, as the case may
be, the applicable percentage set forth below under the caption "Eurocurrency
Spread" or "Facility Fee Percentage", as the case may be, based upon the Ratings
in effect on such date.
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RATING EUROCURRENCY SPREAD FACILITY FEE
PERCENTAGE
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CATEGORY 1
Aa3 or higher by Moody's;
AA- or higher by S&P .250% .050%
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7
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RATING EUROCURRENCY SPREAD FACILITY FEE
PERCENTAGE
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CATEGORY 2
A1 or A2 by Moody's;
A+ or A by S&P .320% .080%
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CATEGORY 3
A3 by Moody's;
A- by S&P .400% .100%
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CATEGORY 4
Baa1 by Moody's;
BBB+ by S&P .475% .125%
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CATEGORY 5
Baa2 by Moody's;
BBB by S&P .600% .150%
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CATEGORY 6
Baa3 by Moody's;
BBB- by S&P .700% .175%
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CATEGORY 7
Ba1 or lower by Moody's;
BB+ or lower by S&P .750% .250%
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For purposes of the foregoing, (i) if either rating agency shall not have a
Rating in effect (other than as a result of circumstances referred to in the
penultimate sentence of this definition), such rating agency shall be deemed to
have a Rating in Category 7; (ii) if the Ratings shall fall or be deemed to fall
within different Categories, the Applicable Percentage shall be based upon the
higher of the two Categories; PROVIDED, HOWEVER, that if the difference in the
Ratings is greater than one Category, the Applicable Percentage will be based on
the Category which is one Category below the higher Rating; and (iii) if any
Rating shall be changed (other than as a result of a change in the rating system
of Moody's or S&P), such change shall be effective as of the date on which it is
first announced by the rating agency making such change. Each such change in the
Applicable Percentage shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Moody's or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the parties hereto shall negotiate in good
faith to amend the references to specific ratings in this definition to reflect
such changed rating system or the non-availability of ratings from such rating
agency, and pending the effectiveness of any such amendment the Applicable
Percentage shall be determined by reference to the rating
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most recently in effect prior to such change or cessation. Notwithstanding the
foregoing, each Applicable Percentage set forth above under the caption
"Eurocurrency Spread" shall be increased (x) by an additional .125% per annum on
any day on which (A) the sum of the Revolving Credit Exposure and the aggregate
Competitive Loan Exposures shall exceed (B) 33% of the Total Commitment, and (y)
at all times on and after the Termination Date, by an additional .20% per annum.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee in the form of Exhibit C.
"BOARD" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the Company or
any duly authorized committee thereof.
"BORROWING" shall mean a group of Loans of a single Type made by the
Lenders (or, in the case of a Competitive Borrowing, by the Lender or Lenders
whose Competitive Bids have been accepted pursuant to Section 2.03) to a single
Borrower on a single date and as to which a single Interest Period is in effect.
"BORROWING MINIMUM" shall mean (a) in the case of a Borrowing denominated
in Dollars, US$5,000,000 and (b) in the case of a Borrowing denominated in any
Foreign Currency, 5,000,000 units of such Foreign Currency.
"BORROWING MULTIPLE" shall mean (a) in the case of a Borrowing denominated
in Dollars, US$1,000,000 and (b) in the case of a Borrowing denominated in any
Foreign Currency, 1,000,000 units of such currency.
"BORROWING REQUEST" shall mean a request by a Borrower for a Borrowing in
accordance with Section 2.04.
"BORROWING SUBSIDIARY" shall mean any Subsidiary which shall have executed
and delivered to the Administrative Agent and each Lender a Borrowing Subsidiary
Agreement.
"BORROWING SUBSIDIARY AGREEMENT" shall mean an agreement, in the form of
Exhibit E hereto, duly executed by the Company and a Subsidiary.
"BUSINESS DAY" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York City; PROVIDED, HOWEVER, that (a) when used in connection
with a Eurocurrency Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in deposits in the applicable currency in
the London interbank market and (b) when used in connection with a Loan
denominated in Euro, the term "Business Day" shall also exclude any day on which
the TARGET payment system is not open for the settlement of payments in Euro.
"CALCULATION DATE" shall mean the last Business Day of each calendar
month.
"A CHANGE IN CONTROL" shall be deemed to have occurred if (a) any person
or group of persons shall have acquired beneficial ownership of more than 50% of
the outstanding Voting Shares of the Company (within the meaning of Section
13(d) or 14(d) of the Securities
9
Exchange Act of 1934, as amended, and the applicable rules and regulations
thereunder), or (b) during any period of 12 consecutive months, commencing
before or after the date of this Agreement, individuals who on the first day of
such period were directors of the Company (together with any replacement or
additional directors who were nominated or elected by a majority of directors
then in office) cease to constitute a majority of the Board of Directors of the
Company.
"CHARGES" shall have the meaning assigned to such term in Section 9.18.
"CLOSING DATE" shall mean the date of this Agreement.
"CODE" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"COMMITMENT" shall mean, with respect to each Lender, the commitment of
such Lender to make Standby Loans hereunder as set forth as of the Closing Date
in Schedule 2.01 hereto as such Lender's commitment may be permanently
terminated or reduced from time to time pursuant to Section 2.12. The Commitment
of each Lender shall automatically and permanently terminate on the Termination
Date if not terminated earlier pursuant to the terms hereof.
"COMMITTED CURRENCY" shall mean Dollars and each Foreign Currency.
"COMPETITIVE BID" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a notification made by a
Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
"COMPETITIVE BID RATE" shall mean, as to any Competitive Bid, (i) in the
case of a Eurocurrency Loan, the Margin, and (ii) in the case of a Fixed Rate
Loan, the fixed rate of interest offered by the Lender making such Competitive
Bid.
"COMPETITIVE BID REQUEST" shall mean a request made pursuant to Section
2.03 in the form of Exhibit A-1.
"COMPETITIVE BORROWING" shall mean a Borrowing consisting of a Competitive
Loan or concurrent Competitive Loans from the Lender or Lenders whose
Competitive Bids for such Borrowing have been accepted under the bidding
procedure described in Section 2.03.
"COMPETITIVE LOAN" shall mean a Loan made pursuant to the bidding
procedure described in Section 2.03. Each Competitive Loan shall be a
Eurocurrency Competitive Loan or a Fixed Rate Loan.
"COMPETITIVE LOAN EXPOSURE" shall mean, at any time, with respect to any
Lender, the aggregate principal amount of the Competitive Loans of such Lender
outstanding at such time.
"CONSOLIDATED EBITDA" shall mean, for any period, Consolidated Net Income
of the Company and its Consolidated Subsidiaries excluding the effect of
non-cash extraordinary items and accounting changes for such period, plus income
taxes during such period, plus the
10
aggregate amount deducted in determining such Consolidated Net Income for such
period in respect of Consolidated Interest Expense of the Company and its
Consolidated Subsidiaries for such period, plus all amounts attributable to
depreciation and amortization of the Company and its Consolidated Subsidiaries
for such period, all determined in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" shall mean, for any period, (a) the
gross interest expense of the Company and its Consolidated Subsidiaries
(excluding the amortization of transaction costs) in respect of Indebtedness
included within clauses (i) through (iv) of the definition of Indebtedness for
such period, all determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" shall mean, for any period, the
consolidated net income (or loss) of the Company and its Consolidated
Subsidiaries for such period, determined in accordance with GAAP.
"CONSOLIDATED NET INDEBTEDNESS" shall mean, for any date, (a) the
sum of all outstanding Indebtedness of the Company and its Consolidated
Subsidiaries as of such date less (b) the lesser of (i) US$50,000,000 and (ii)
Eligible Investments as of such date, all determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" shall mean, at any date, any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements as of such date.
"DEFAULT" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"DOLLARS" or "US$" shall mean lawful money of the United States of
America.
"DOLLAR EQUIVALENT" shall mean, on any date of determination (a)
with respect to any amount in Dollars, such amount, and (b) with respect to any
amount in any Foreign Currency, the equivalent in Dollars of such amount,
determined by the Administrative Agent pursuant to Section 1.03(b) using the
Exchange Rate with respect to such Foreign Currency at the time in effect under
the provisions of such Section.
"ELIGIBLE INVESTMENTS" shall mean:
(a) cash and cash equivalents;
(b) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof by the
Company or any Subsidiary;
(c) investments in money market funds the assets of which are
invested in obligations of the type described in (b) above (irrespective
of maturity); and
(d) other money market investments offered by any of the Lenders or
a commercial bank having the highest credit rating available from Standard
& Poor's Corporation or Xxxxx'x Investors Service, Inc. and having
maturities of less than 90 days.
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"ENVIRONMENTAL LAWS" shall have the meaning assigned to such term in
Section 3.12.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414 of the Code.
"EURO" or "f" shall mean the single currency of the participating member
states of the European Union.
"EUROCURRENCY BORROWING" shall mean a Borrowing comprised of Eurocurrency
Loans.
"EUROCURRENCY COMPETITIVE BORROWING" shall mean a Borrowing comprised of
Eurocurrency Competitive Loans.
"EUROCURRENCY COMPETITIVE LOAN" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"EUROCURRENCY LOAN" shall mean any Eurocurrency Competitive Loan or
Eurocurrency Standby Loan.
"EUROCURRENCY STANDBY BORROWING" shall mean a Borrowing comprised of
Eurocurrency Standby Loans.
"EUROCURRENCY STANDBY LOAN" shall mean any Standby Loan bearing interest at
a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in Article
VI.
"EXCHANGE RATE" shall mean on any day, with respect to any Foreign
Currency, the rate at which such Foreign Currency may be exchanged into Dollars,
as set forth at approximately 11:00 a.m., London time, on such day on the
Reuters World Currency Page for such Foreign Currency. In the event that such
rate does not appear on any Reuters World Currency Page, the Exchange Rate shall
be determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative Agent and
the Company, or, in the absence of such agreement, such Exchange Rate shall be
the arithmetic average of the spot rates of exchange of the Administrative Agent
in the market where its foreign currency exchange operations in respect of such
Foreign Currency are then being conducted, at or about 10:00 a.m., London time,
on such date for the purchase of Dollars for delivery two Business Days later;
provided that if at the time of any such determination, for any reason, no such
spot rate is being quoted, the Administrative Agent, after consultation with the
Company, may use any reasonable method it deems appropriate to determine such
rate, and such determination shall be conclusive absent manifest error.
"EXISTING CREDIT AGREEMENT" shall have the meaning assigned to such term in
the recitals to this Agreement.
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"FACILITY FEE" shall have the meaning assigned to such term in Section
2.06(a).
"FINANCIAL OFFICER" of any corporation shall mean the chief financial
officer, principal accounting officer, treasurer or assistant treasurer of such
corporation.
"FIVE-YEAR FACILITY" shall mean the 5-Year Competitive Advance and
Revolving Credit Facility Agreement dated as of March 2, 2001, as amended from
time to time, among the Company, certain of the Subsidiaries, the lenders named
therein and JPMorgan Chase Bank (as successor to The Chase Manhattan Bank), as
administrative agent.
"FIXED RATE BORROWING" shall mean a Borrowing comprised of Fixed Rate
Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
"FOREIGN CURRENCY" shall mean Sterling and Euro.
"GAAP" shall mean generally accepted accounting principles in the United
States of America, applied on a consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body.
"GUARANTEED OBLIGATIONS" shall mean the principal of and interest on the
Loans made to, and the other obligations, monetary or otherwise, of, the
Borrowing Subsidiaries under this Agreement.
"INDEBTEDNESS" of any person shall mean at any date, without duplication,
(i) all obligations of such person for borrowed money (but not including
non-recourse obligations of such person), (ii) all obligations of such person
evidenced by bonds, debentures, notes or other similar instruments, except trade
payables and reimbursement obligations in respect of performance bonds and
standby letters of credit to the extent the obligations underlying such letters
of credit would not be considered Indebtedness, all of which arise in the
ordinary course of business, (iii) all obligations of such person to pay the
deferred purchase price of property or services, except trade accounts payable
and accrued expenses arising in the ordinary course of business, (iv) all
obligations of such person as lessee under capital leases, (v) all Indebtedness
of others secured by a Lien on any asset of such person (but not including
non-recourse obligations of such person) and (vi) all Indebtedness of others
guaranteed by such person.
"INFORMATION" shall mean any materials, documents and information (other
than annual reports, prospectuses, proxy statements and other materials
distributed to the Company's shareholders) that the Company or any of its
Subsidiaries may have furnished or may hereafter furnish to the Agents or any
Lender in connection with Sections 4.03(d), 5.01, 5.04 and 5.05 of this
Agreement.
"INTEREST ELECTION REQUEST" shall mean a request by the relevant Borrower
to convert or continue a Borrowing in accordance with Section 2.07.
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"INTEREST PAYMENT DATE" shall mean (i) as to any Eurocurrency Loan for
which the Interest Period is 1, 2 or 3 months, the last day of the Interest
Period, (ii) as to any Eurocurrency Loan for which the Interest Period is 6
months, the last day of the Interest Period and the date that would be the last
day of an Interest Period commencing on the same date but having a duration of 3
months, (iii) as to any ABR Loan, the last day of March, June, September and
December in each year, or if such day is not a Business Day, the next succeeding
Business Day and (iv) as to any Fixed Rate Loan, the last day of the Interest
Period applicable thereto.
"INTEREST PERIOD" shall mean (a) as to any Eurocurrency Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter, as the Borrower may elect, (b) as to any ABR
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the next succeeding March 31, June 30,
September 30 or December 31, or, if earlier, on the Maturity Date or the date
such Borrowing is repaid or prepaid in accordance with Section 2.08 or Section
2.13 and (c) as to any Fixed Rate Borrowing, the period commencing on the date
of such Borrowing and ending on the date specified in the Competitive Bids in
which the offers to make the Fixed Rate Loans comprising such Borrowing were
extended, which shall not be earlier than seven days after the date of such
Borrowing or later than 360 days after the date of such Borrowing; PROVIDED,
HOWEVER, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of Eurocurrency Loans only, such next succeeding Business
Day would fall in the next calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day. Interest shall accrue from
and including the first day of an Interest Period to but excluding the last day
of such Interest Period.
"JPMCB" shall mean JPMorgan Chase Bank and its successors.
"JPMEL" shall mean X.X. Xxxxxx Europe Limited and its successors.
"JUDGMENT CURRENCY" has the meaning assigned to such term in Section
9.19(b).
"LIBO RATE" shall mean, for any Interest Period, (a) with respect to any
Eurocurrency Borrowing denominated in Dollars or Euro, the rate per annum
determined by the Applicable Agent at approximately 11:00 a.m., London time, on
the Quotation Day for such Interest Period by reference to the British Bankers'
Association Interest Settlement Rates for deposits in the currency of such
Borrowing (as reflected on the applicable Telerate screen), for a period equal
to such Interest Period, or, if an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the interest rate per annum
determined by the Applicable Agent to be the average of the rates per annum at
which deposits in the currency of such Borrowing are offered for such Interest
Period to major banks in the London interbank market by JPMCB at approximately
11:00 a.m., London time, on the Quotation Day for such Interest Period, and (b)
with respect to any Eurocurrency Borrowing denominated in Sterling, the interest
rate per annum determined by the Applicable Agent to be the average of the rates
per annum at which deposits in the currency of such Borrowing are offered for
such Interest Period to major banks in the London interbank market by JPMCB at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
14
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind whatsoever (including any conditional sale or other
title retention agreement, any lease in the nature thereof and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction).
"LOAN" shall mean a Competitive Loan, a Standby Loan, whether made as a
Eurocurrency Loan, an ABR Loan or a Fixed Rate Loan, as permitted hereby or a
Swingline Loan.
"LOCAL TIME" shall mean (a) with respect to a Loan or Borrowing
denominated in Dollars, New York City time, and (b) with respect to a Loan or
Borrowing denominated in any Foreign Currency, London time.
"LONDON AGENT" shall mean X.X. Xxxxxx Europe Limited or any successor in
such capacity.
"MARGIN" shall mean, as to any Eurocurrency Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"MARGIN REGULATIONS" shall mean Regulations U and X of the Board as from
time to time in effect, and all official rulings and interpretations thereunder
or thereof.
"MARGIN STOCK" shall have the meaning given such term under Regulation U
of the Board.
"MATERIAL ADVERSE EFFECT" shall mean a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Company and its Consolidated Subsidiaries taken as a whole.
"MATURITY DATE" shall mean February 28, 2004.
"MAXIMUM RATE" shall have the meaning assigned to such term in
Section 9.18.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc., or any of its
successors.
"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in Section
4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"NEW LENDING OFFICE" shall have the meaning assigned to such term in
Section 2.21(g).
"NON-U.S. LENDER" shall mean any Lender (or Transferee) that is organized
under the laws of a jurisdiction other than the United States, any State thereof
or the District of Columbia.
"OTHER TAXES" shall have the meaning assigned to such term in
Section 2.21(b).
15
"PARTICIPATING PERCENTAGE" shall mean, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Participating Percentages shall
be determined based upon the Commitments most recently in effect, giving effect
to any assignments.
"PERSON" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and
defined in ERISA.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code that is maintained for current or former employees, or any
beneficiary thereof, of the Company or any ERISA Affiliate.
"QUOTATION DAY" shall mean, with respect to any Eurocurrency Borrowing and
any Interest Period, the day on which it is market practice in the relevant
interbank market for leading banks to give quotations for deposits in the
currency of such Borrowing for delivery on the first day of such Interest
Period. If such quotations would normally be given by leading banks on more than
one day, the Quotation Day will be the last of such days.
"RATINGS" shall mean the ratings from time to time established by Moody's
and S&P for senior, unsecured, non-credit-enhanced long-term debt of the
Company.
"REGISTER" shall have the meaning given such term in Section 9.04(d).
"REGULATION D" shall mean Regulation D of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"REPORTABLE EVENT" shall mean any reportable event as defined in Section
4043(b) of ERISA or the regulations issued thereunder with respect to a Plan
(other than a Plan maintained by an ERISA Affiliate that is considered an ERISA
Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"REQUIRED LENDERS" shall mean, at any time, Lenders having Commitments
representing more than 50% of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VI, Lenders holding Loans
representing more than 50% of the aggregate principal amount of the Loans
outstanding.
"REVOLVING CREDIT EXPOSURE" shall mean, at any time, the sum of (a) the
aggregate principal amount of the Standby Loans denominated in Dollars
outstanding at such time, (b) the Dollar Equivalent of the aggregate principal
amount of the Standby Loans denominated in Sterling or Euro outstanding at such
time and (c) the aggregate Swingline Exposure at such time. The Revolving Credit
Exposure of any Lender at any time shall be such Lender's Participating
Percentage of the total Revolving Credit Exposure at such time.
"S&P" shall mean Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any of its successors.
16
"SHAREHOLDERS' EQUITY" shall mean, with respect to the Company at any
date, (a) the sum of (i) common stock and preferred stock taken at par or stated
value at such date, (ii) capital in excess of par value at such date, (iii)
cumulative translation adjustments and other adjustments required by GAAP at
such date and (iv) retained earnings (or deficit) at such date minus (b)
treasury stock at such date, all determined in accordance with GAAP.
"STANDBY BORROWING" shall mean a Borrowing consisting of simultaneous
Standby Loans from each of the Lenders.
"STANDBY BORROWING REQUEST" shall mean a request made pursuant to Section
2.04 in the form of Exhibit A-5.
"STANDBY LOANS" shall mean the revolving loans made pursuant to
Section 2.04. Each Standby Loan shall be a Eurocurrency Standby Loan or an ABR
Loan.
"STERLING" or "(POUND)" shall mean the lawful money of the United Kingdom.
"SUBSIDIARY" shall mean, with respect to any person (the "parent"), any
corporation, association or other business entity of which securities or other
ownership interests representing more than 50% of the ordinary voting power are,
at the time as of which any determination is being made, owned or controlled by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
"SUBSIDIARY" shall mean a subsidiary of the Company.
"SWINGLINE BORROWING" shall mean a Borrowing consisting of simultaneous
Swingline Loans from each of the Swingline Lenders.
"SWINGLINE COMMITMENT" shall mean, with respect to each Swingline Lender,
the commitment of such Lender hereunder to make Swingline Loans set forth as of
the Closing Date in Schedule 2.01 hereto, as such Swingline Commitment may be
permanently terminated or reduced from time to time pursuant to Section 2.12.
The Swingline Commitment of each Swingline Lender shall automatically and
permanently terminate on the Termination Date if not terminated earlier pursuant
to the terms hereof.
"SWINGLINE EXPOSURE" means, at any time, the Dollar Equivalent of the
aggregate principal amount of the Swingline Loans denominated in Sterling or
Euro outstanding at such time. The Swingline Exposure of any Lender at any time
shall be such Lender's Participating Percentage of the total Swingline Exposure
at such time.
"SWINGLINE LENDERS" shall mean X.X. Xxxxxx Europe Limited and Fleet
National Bank, in their capacity as lenders of Swingline Loans hereunder.
"SWINGLINE LOAN" shall mean a Loan made in accordance with Section 2.05.
"TAXES" shall have the meaning assigned to such term in Section 2.21(a).
"TERMINATION DATE" shall mean February 28, 2003.
"TOTAL COMMITMENT" shall mean, at any time, the aggregate amount of
Commitments of all the Lenders, as in effect at such time.
17
"TRANSFEREE" shall have the meaning assigned to such term in
Section 2.21(a).
"TYPE", when used in respect of any Loan or Borrowing, shall refer to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "RATE" shall include the LIBO
Rate, the Alternate Base Rate and the Fixed Rate.
"VOTING SHARES" shall mean, as to any corporation, outstanding shares of
stock of any class of such corporation entitled to vote in the election of
directors, excluding shares entitled so to vote only upon the happening of some
contingency.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01 shall apply
equally to both the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation." All references
herein to Articles, Sections, Exhibits and Schedules shall be deemed references
to Articles and Sections of, and Exhibits and Schedules to, this Agreement
unless the context shall otherwise require. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED,
HOWEVER, that for purposes of determining compliance with any covenant set forth
in Article V, such terms shall be construed in accordance with GAAP as in effect
on the date hereof applied on a basis consistent with the application used in
preparing the Company's audited financial statements referred to in
Section 3.04.
SECTION 1.03. EXCHANGE RATES. (a) Not later than 1:00 p.m., New York City
time, on each Calculation Date, the Administrative Agent shall (i) determine the
Exchange Rate as of such Calculation Date with respect to each Foreign Currency
and (ii) give notice thereof to the Lenders and the Company. The Exchange Rates
so determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a "RECALCULATION DATE"), shall remain
effective until the next succeeding Recalculation Date, and shall for all
purposes of this Agreement (other than Section 2.11, Section 9.19 or any other
provision expressly requiring the use of a current Exchange Rate) be the
Exchange Rates employed in converting any amounts between Dollars and Foreign
Currency.
(b) Not later than 5:00 p.m., New York City time, on each Recalculation
Date and each date on which Loans denominated in any Foreign Currency are made,
the Administrative Agent shall (i) determine the aggregate amount of the Dollar
Equivalents of the principal amounts of the Loans denominated in Foreign
Currency then outstanding (after giving effect to any Loans denominated in
Foreign Currency made or repaid on such date) and (ii) notify the Lenders and
the Company of the results of such determination.
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ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and relying
upon the representations and warranties herein set forth, each Lender agrees,
severally and not jointly, to make Standby Loans to the Borrowers, at any time
and from time to time on and after the Closing Date hereof and until the earlier
of the Termination Date and the termination of the Commitment of such Lender, in
any Committed Currency, in amounts that will not result in (i) such Lender's
Revolving Credit Exposure exceeding its Commitment, (ii) the aggregate amount of
the Lenders' Revolving Credit Exposures and Competitive Loan Exposures exceeding
the aggregate amount of the Commitments or (iii) the aggregate amount of the
Dollar Equivalents of all outstanding Loans (including Swingline Loans)
denominated in Foreign Currencies exceeding US$100,000,000.
Within the foregoing limits, the Borrowers may borrow, pay or prepay and
reborrow Standby Loans hereunder, on and after the Closing Date and prior to the
Termination Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. LOANS. (a) Each Standby Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments; PROVIDED, HOWEVER, that the failure of any Lender
to make any Standby Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender shall
be responsible for the failure of any other Lender to make any Loan required to
be made by such other Lender). Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.03. The Standby Loans comprising any
Borrowing shall be in an aggregate principal amount that is at least equal to
the Borrowing Minimum and an integral multiple of the Borrowing Multiple (or an
aggregate principal amount equal to the remaining balance of the available
Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of Eurocurrency
Competitive Loans or Fixed Rate Loans, each Standby Borrowing denominated in a
Foreign Currency shall be comprised entirely of Eurocurrency Standby Loans and
each Standby Borrowing denominated in Dollars shall be comprised entirely of ABR
Loans or Eurocurrency Standby Loans, as any Borrower may request pursuant to
Section 2.03 or 2.04, as applicable. Each Lender may at its option make any
Eurocurrency Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; PROVIDED that (i) any exercise of such option shall
not affect the obligation of such Borrower to repay such Loan in accordance with
the terms of this Agreement and (ii) the Borrowers shall not be liable for
increased costs under Section 2.14 or 2.15 to the extent that (A) such costs
could be avoided by the use of a different branch or Affiliate to make
Eurocurrency Loans and (B) such use would not, in the judgment of such Lender,
entail any expense for which such Lender shall not be indemnified hereunder.
Borrowings of more than one Type may be outstanding at the same time; PROVIDED,
HOWEVER, that no Borrowing shall be requested which, if made, would result in an
aggregate of more than 10 separate Standby Borrowings comprised of Eurocurrency
Loans being outstanding hereunder at any one time. For purposes of the
foregoing, Borrowings having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Borrowings.
(c) Subject to Section 2.02(d), each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Applicable Agent, not later than 12:00 noon,
Local Time, and the Applicable Agent shall by
19
3:00 p.m., Local Time, credit the amounts so received to an account designated
by the applicable Borrower (i) in New York City, in the case of Loans
denominated in Dollars, or (ii) in London, in the case of Loans denominated in
Foreign Currencies or, if a Borrowing shall not occur on such date because any
condition precedent herein specified shall not have been met, return the amounts
so received to the respective Lenders. Competitive Loans shall be made by the
Lender or Lenders whose Competitive Bids therefor are accepted pursuant to
Section 2.03 in the amounts so accepted. Standby Loans shall be made by the
Lenders pro rata in accordance with Section 2.17. Unless the Applicable Agent
shall have received notice from a Lender prior to the date of any Borrowing that
such Lender will not make available to the Applicable Agent such Lender's
portion of such Borrowing, the Applicable Agent may assume that such Lender has
made such portion available to the Applicable Agent on the date of such
Borrowing in accordance with this paragraph (c) and the Applicable Agent may, in
reliance upon such assumption, make available to the applicable Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have made such portion available to the Applicable Agent, such Lender and the
applicable Borrower severally agree to repay to the Applicable Agent forthwith
on demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Borrower until the date such
amount is repaid to the Applicable Agent at (i) in the case of such Borrower,
the interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, (x) the Federal Funds Effective Rate (in
the case of a Borrowing denominated in Dollars) and (y) the rate reasonably
determined by the Applicable Agent to be the cost to it of funding such amount
(in the case of a Borrowing denominated in a Foreign Currency). If such Lender
shall repay to the Applicable Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Any Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same or a different Type made pursuant to Section 2.03 or
Section 2.04, subject to the conditions and limitations set forth herein and
elsewhere in this Agreement, including refinancings of Competitive Borrowings
with Standby Borrowings and Standby Borrowings with Competitive Borrowings. Any
Borrowing or part thereof so refinanced shall be deemed to be repaid in
accordance with Section 2.08 with the proceeds of a new Borrowing hereunder and
the proceeds of the new Borrowing, to the extent they do not exceed the
principal amount of the Borrowing being refinanced, shall not be paid by the
Lenders to the Applicable Agent or by the Applicable Agent to the applicable
Borrower pursuant to Section 2.02(c); PROVIDED, HOWEVER, that (i) if the
principal amount extended by a Lender in a refinancing is greater than the
principal amount extended by such Lender in the Borrowing being refinanced, then
such Lender shall pay such difference to the Applicable Agent for distribution
to the Lenders described in (ii) below, (ii) if the principal amount extended by
a Lender in the Borrowing being refinanced is greater than the principal amount
being extended by such Lender in the refinancing, the Applicable Agent shall
return the difference to such Lender out of amounts received pursuant to (i)
above and (iii) to the extent any Lender fails to pay the Agent amounts due from
it pursuant to (i) above, any Loan or portion thereof being refinanced with such
amounts shall not be deemed repaid in accordance with Section 2.08 and shall be
payable by the Company.
SECTION 2.03. COMPETITIVE BID PROCEDURE. (a) In order to request
Competitive Bids, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit A-1 hereto, to be received by the Administrative Agent (i) in the case
of a Eurocurrency Competitive Borrowing, not later than 10:00 a.m., New York
City time, four Business Days before a proposed Competitive Borrowing and (ii)
in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City
time, one Business Day before a proposed Competitive Borrowing. No ABR Loan or
Loan denominated in
20
a currency other than Dollars shall be requested in, or made pursuant to, a
Competitive Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit A-1 may be rejected in the Administrative
Agent's sole discretion, and the Administrative Agent shall promptly notify the
applicable Borrower of such rejection by telecopy. Each Competitive Bid Request
shall refer to this Agreement and specify whether the Borrowing then being
requested is to be a Eurocurrency Borrowing or a Fixed Rate Borrowing, the date
of such Borrowing (which shall be a Business Day), the aggregate principal
amount thereof, which shall be in a minimum principal amount of US$5,000,000 and
in an integral multiple of US$1,000,000, and the Interest Period with respect
thereto (which may not end after the Termination Date). Promptly after its
receipt of a Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopy (in the form set forth in Exhibit
A-2 hereto) the Lenders to bid, on the terms and conditions of this Agreement,
to make Competitive Loans.
(b) Each Lender invited to bid may, in its sole discretion, make one or
more Competitive Bids to the applicable Borrower responsive to such Borrower's
Competitive Bid Request. Each Competitive Bid by a Lender must be received by
the Administrative Agent by telecopy, in the form of Exhibit A-3 hereto, (i) in
the case of a Eurocurrency Competitive Borrowing, not later than 9:30 a.m., New
York City time, three Business Days before a proposed Competitive Borrowing and
(ii) in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York
City time, on the day of a proposed Competitive Borrowing. Multiple bids will be
accepted by the Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected by the Administrative
Agent, and the Administrative Agent shall notify the Lender making such
nonconforming bid of such rejection as soon as practicable. Each Competitive Bid
shall refer to this Agreement and specify (x) the principal amount (which shall
be in a minimum principal amount of US$5,000,000 and in an integral multiple of
US$1,000,000 and which may equal the entire principal amount of the Competitive
Borrowing requested) of the Competitive Loan or Loans that the Lender is willing
to make, (y) the Competitive Bid Rate or Rates at which the Lender is prepared
to make the Competitive Loan or Loans and (z) the Interest Period and the last
day thereof. If any Lender invited to bid shall elect not to make a Competitive
Bid, such Lender shall so notify the Administrative Agent by telecopy (I) in the
case of Eurocurrency Competitive Loans, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing, and (II) in
the case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on
the day of a proposed Competitive Borrowing; PROVIDED, HOWEVER, that failure by
any Lender to give such notice shall not cause such Lender to be obligated to
make any Competitive Loan as part of such Competitive Borrowing. A Competitive
Bid submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the applicable
Borrower, by telecopy, of all the Competitive Bids made, the Competitive Bid
Rate and the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Lender that made each bid. The
Administrative Agent shall send a copy of all Competitive Bids to such Borrower
for its records as soon as practicable after completion of the bidding process
set forth in this Section 2.03.
(d) The applicable Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. Such Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject any of or all the bids referred to in paragraph (c) above,
(x) in the case of a Eurocurrency Competitive Borrowing, not later than 10:30
a.m., New York City time, three Business Days before a proposed Competitive
Borrowing, and (y) in the case of a Fixed Rate Borrowing, not later than
10:30 a.m.,
21
New York City time, on the day of a proposed Competitive Borrowing; PROVIDED,
HOWEVER, that (i) the failure of such Borrower to give such notice shall be
deemed to be a rejection of all the bids referred to in paragraph (c) above,
(ii) such Borrower shall not accept a bid made at a particular Competitive Bid
Rate if it has decided to reject a bid made at a lower Competitive Bid Rate,
(iii) the aggregate amount of the Competitive Bids accepted by such Borrower
shall not exceed the principal amount specified in the Competitive Bid Request,
(iv) if such Borrower shall accept a bid or bids made at a particular
Competitive Bid Rate but the amount of such bid or bids shall cause the total
amount of bids to be accepted to exceed the amount specified in the Competitive
Bid Request, then such Borrower shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted with respect to such Competitive
Bid Request, which acceptance, in the case of multiple bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount of each such bid
at such Competitive Bid Rate, and (v) except pursuant to clause (iv) above, no
bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of US$5,000,000 and an integral multiple of
US$1,000,000; PROVIDED FURTHER, HOWEVER, that if a Competitive Loan must be in
an amount less than US$5,000,000 because of the provisions of clause (iv) above,
such Competitive Loan may be for a minimum of US$1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate pursuant to
clause (iv) the amounts shall be rounded to integral multiples of US$1,000,000
in a manner which shall be in the discretion of the applicable Borrower. A
notice given pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy, and each successful bidder will
thereupon become bound, subject to the other applicable conditions hereof, to
make the Competitive Loan or Loans in respect of which its bid has been
accepted.
(f) A Competitive Bid Request shall not be made within five Business Days
after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a Competitive Bid in
its capacity as a Lender, it shall submit such bid directly to the applicable
Borrower one quarter of an hour earlier than the latest time at which the other
Lenders are required to submit their bids to the Administrative Agent pursuant
to paragraph (b) above.
(h) All notices required by this Section 2.03 shall be given in accordance
with Section 9.01.
SECTION 2.04. STANDBY BORROWING PROCEDURE. In order to request a Standby
Borrowing, a Borrower shall hand deliver or telecopy to the Applicable Agent a
duly completed Standby Borrowing Request in the form of Exhibit A-5 (a) in the
case of a Eurocurrency Standby Borrowing, not later than 10:30 a.m., Local Time,
three Business Days before such Borrowing, and (b) in the case of an ABR
Borrowing, not later than 10:30 a.m., Local Time, on the day of such Borrowing.
Such notice shall be irrevocable and shall in each case specify (i) whether the
Borrowing then being requested is to be a Eurocurrency Standby Borrowing or an
ABR Borrowing; (ii) the currency and aggregate principal amount of the requested
Borrowing; (iii) the date of such Standby Borrowing (which shall be a Business
Day); and (iv) if such Borrowing is to be a Eurocurrency Standby Borrowing, the
Interest Period with respect thereto, which shall not
22
end after the Maturity Date. If no election as to the Type of Standby Borrowing
is specified in any such notice, then the requested Standby Borrowing shall be
(i) in the case of a Standby Borrowing denominated in Dollars, an ABR Borrowing,
and (ii) in the case of a Standby Borrowing denominated in a Foreign Currency, a
Eurocurrency Standby Borrowing. If no currency is specified with respect to any
requested Eurocurrency Standby Borrowing, then the Borrower shall be deemed to
have selected Dollars. If no Interest Period with respect to any Eurocurrency
Standby Borrowing is specified in any such notice, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. The
Applicable Agent shall promptly advise the Lenders of any notice given pursuant
to this Section 2.04 and of each Lender's portion of the requested Borrowing.
SECTION 2.05. SWINGLINE LOANS. (a) Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Swingline
Lender agrees to make Swingline Loans denominated in Sterling or Euro to the
Borrowers, at any time and from time to time on and after the date hereof and
until the earlier of the Termination Date and the termination of the
Commitments; PROVIDED, that no Swingline Lender shall be required to make a
Swingline Loan that would result in (i) the aggregate amount of the Lenders'
Revolving Credit Exposures and Competitive Loan Exposures exceeding the
aggregate amount of the Commitments or (ii) the aggregate amount of the Dollar
Equivalents of all outstanding Swingline Loans exceeding US$100,000,000. Each
Swingline Lender may at its option make any Swingline Loan by causing any branch
or Affiliate of such Swingline Lender to make such Swingline Loan; PROVIDED that
(i) any exercise of such option shall not affect the obligation of the
applicable Borrower to repay such Swingline Loan in accordance with the terms of
this Agreement and (ii) the Borrowers shall not be liable for increased costs
under Section 2.14 or 2.15 to the extent that (A) such costs could be avoided by
the use of a different branch or Affiliate to make Swingline Loans and (B) such
use would not, in the judgment of such Swingline Lender, entail any expense for
which such Swingline Lender shall not be indemnified hereunder. No Swingline
Loan shall be made to refinance an outstanding Swingline Loan. Each Swingline
Loan shall be made as part of a Swingline Borrowing consisting of Swingline
Loans made by the Swingline Lenders ratably in accordance with their respective
Swingline Commitments.
(b) To request a Swingline Borrowing, the applicable Borrower shall notify
JPMEL of such request by telecopy or telephone (confirmed by telecopy), not
later than 11:00 a.m., Local Time, on the day of a proposed Swingline Loan. Each
such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day), the aggregate amount of the requested Swingline Loan
and the amount of the Swingline Loan to be made by each Swingline Lender as part
of such Borrowing. JPMEL will promptly advise the Swingline Lenders of any such
notice received from such Borrower. The Swingline Lenders shall make their
Swingline Loans available to such Borrower by means of a credit to an account of
such Borrower with JPMEL (or another account in London specified by such
Borrower in its request for such Swingline Loan) by 2:00 p.m., Local Time, on
the date such Swingline Loan is requested.
(c) Any Swingline Lender may by written notice given to JPMEL not later
than 12:00 noon, Local Time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of its outstanding
Swingline Loans. Such notice shall specify the aggregate amount of Swingline
Loans of such Swingline Lender in which the Lenders will participate. Promptly
upon receipt of such notice, JPMEL will give notice thereof to each Lender,
specifying in such notice such Lender's pro rata portion of such Swingline Loan
or Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt
of notice as provided above, to pay to JPMEL, for the account of the applicable
Swingline Lender, such
23
Lender's pro rata portion of such Swingline Loan or Loans. Each Lender
acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or an Event of Default or reduction or termination
of the Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Each Lender shall comply with
its obligation under this paragraph by wire transfer of immediately available
funds, in the same manner as provided in Section 2.02(c) with respect to Loans
made by such Lender (and Section 2.02(c) shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and JPMEL shall promptly pay to the
Swingline Lender the amounts so received by it from the Lenders. JPMEL shall
notify the Company of any participations in any Swingline Loan acquired pursuant
to this paragraph, and thereafter payments in respect of such Swingline Loan
shall be made to JPMEL and not to the Swingline Lender. Any amounts received by
the Swingline Lender from a Borrower (or other party on behalf of a Borrower) in
respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to
JPMEL; any such amounts received by JPMEL shall be promptly remitted by JPMEL to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the applicable Borrower (or any other party liable for the obligations of such
Borrower) of any default in the payment thereof.
SECTION 2.06. FACILITY FEES. (a) The Company agrees to pay to each Lender,
through the Administrative Agent, on each March 31, June 30, September 30 and
December 31 (with the first payment being due on March 31, 2002), on the
Termination Date, on the Maturity Date and on any other date on which the
Commitment of such Lender shall be terminated as provided herein, a facility fee
(a "Facility Fee"), at a rate per annum equal to the Applicable Percentage from
time to time in effect (i) on the average daily amount of the Commitment of such
Lender, whether used or unused, on or prior to the Termination Date, and (ii) on
the daily average amount of the outstanding Loans of such Lender after the
Termination Date, in each case during the preceding quarter (or other period
commencing on the date of this Agreement, or ending with the Termination Date or
the Maturity Date or other date on which the Commitment of such Lender shall be
terminated). All Facility Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Facility Fee due to each
Lender shall commence to accrue on the date of this Agreement and shall cease to
accrue on the earlier of the Maturity Date and the date on which the Commitment
of such Lender shall have been terminated and the Loans of such Lender shall
have been repaid.
(b) The Company agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, if
and as appropriate, among the Lenders. Once paid, none of such fees shall be
refundable under any circumstances.
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SECTION 2.07. CONVERSION AND CONTINUATION OF STANDBY BORROWINGS. The
applicable Borrower shall have the right, at any time prior to the Maturity
Date, upon prior irrevocable notice to the Applicable Agent, (a) not later than
11:00 a.m., Local Time, one Business Day prior to conversion, to convert any
Eurocurrency Standby Borrowing denominated in Dollars into an ABR Borrowing, (b)
not later than 11:00 a.m., Local Time, three Business Days prior to conversion
or continuation, to convert any ABR Borrowing into a Eurocurrency Standby
Borrowing or to continue any Eurocurrency Standby Borrowing as a Eurocurrency
Standby Borrowing for an additional Interest Period, and (c) not later than
11:00 a.m., Local Time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurocurrency Standby Borrowing to another
permissible Interest Period subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Standby Borrowing;
(ii) if less than all the outstanding principal amount of any
Standby Borrowing shall be converted or continued, the aggregate principal
amount of such Standby Borrowing converted or continued shall be an
integral multiple equal to the Borrowing Multiple and not less than the
Borrowing Minimum;
(iii) if any Eurocurrency Standby Borrowing is converted at a time
other than the end of the Interest Period applicable thereto, the
applicable Borrower shall pay, upon demand, any amounts due to the Lenders
pursuant to Section 2.16;
(iv) any portion of a Standby Borrowing denominated in Dollars and
maturing or required to be repaid in less than one month may not be
converted into or continued as a Eurocurrency Standby Borrowing;
(v) any portion of a Eurocurrency Standby Borrowing denominated in
Dollars which cannot be continued as a Eurocurrency Standby Borrowing by
reason of clause (iv) above shall be automatically converted at the end of
the Interest Period in effect for such Borrowing into an ABR Borrowing;
and
(vi) no Interest Period may be selected for any Eurocurrency Standby
Borrowing that would end later than the Maturity Date.
Each notice pursuant to this Section 2.07 shall be by hand delivery
or telecopier and irrevocable and shall refer to this Agreement and specify (A)
the identity and amount of the Standby Borrowing that the Borrower requests be
converted or continued, (B) whether such Standby Borrowing is to be converted to
or continued as a Eurocurrency Standby Borrowing or an ABR Borrowing, (C) if
such notice requests a conversion, the date of such conversion (which shall be a
Business Day) and (D) if such Standby Borrowing is to be converted to or
continued as a Eurocurrency Standby Borrowing, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurocurrency Standby Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Applicable Agent shall advise the other Lenders of any notice
given pursuant to this Section 2.07 and of each Lender's portion of any
converted or continued Standby Borrowing. If the applicable Borrower shall not
have given notice in accordance with this Section 2.07 to continue any Standby
Borrowing into a subsequent Interest Period (and shall not otherwise have given
notice in accordance with this Section 2.07 of its
25
desire to convert such Standby Borrowing or of its intention to prepay such
Standby Borrowing at the end of such Interest Period), such Standby Borrowing
shall, at the end of such Interest Period (unless prepaid pursuant to the terms
hereof), (1) in the case of a Borrowing denominated in Dollars, automatically be
continued as an ABR Borrowing and (2) in the case of a Borrowing denominated in
a Foreign Currency, be continued for a period of five Business Days as a
Borrowing bearing interest at a rate determined by the Applicable Agent (which
determination shall be conclusive absent manifest error) to represent the
overnight cost to the Lenders of funds in the applicable currency plus the
Applicable Percentage used to determine interest on Eurocurrency Loans, it being
agreed that (x) the Applicable Agent shall notify the Borrower on the first day
of such period of its failure to deliver the notice required by this Section
2.07, (y) the Borrower may during such period request that such Borrowing be
continued for a new Interest Period, in which case such Borrowing shall be
continued as requested on the third Business Day following such request (and
pending such continuation shall bear interest as provided in the preceding
clause (x)), and (z) if the Borrower shall submit no such request, such
Borrowing shall become due and payable at the end of such period.
SECTION 2.08. REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each
Borrower hereby agrees that (i) the outstanding principal balance of each
Standby Loan shall be due and payable on the Maturity Date, (ii) the outstanding
principal balance of each Competitive Loan shall be due and payable on the last
day of the Interest Period applicable thereto and (iii) the outstanding
principal balance of each Swingline Loan shall be due and payable on the fifth
Business Day following the making of such Swingline Loan. Each Loan shall bear
interest on the outstanding principal balance thereof as set forth in Section
2.09.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness to such Lender
resulting from each Loan made by such Lender from time to time, including the
amounts of principal and interest payable and paid such Lender from time to time
under this Agreement.
(c) The Applicable Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type of each Loan
made and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Applicable Agent hereunder from each Borrower and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.08 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations therein recorded; PROVIDED, HOWEVER, that the failure of any Lender
or the Applicable Agent to maintain such accounts or any error therein shall not
in any manner affect the obligations of the Borrowers to repay the Loans in
accordance with their terms.
SECTION 2.09. INTEREST ON LOANS. (a) Subject to the provisions
of Section 2.10, the Loans comprising each Eurocurrency Borrowing shall bear
interest at a rate per annum equal to (i) in the case of each Eurocurrency
Standby Loan, the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Percentage from time to time in effect and (ii) in the case
of each Eurocurrency Competitive Loan, the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Margin offered by the Lender making such Loan
and accepted by the applicable Borrower pursuant to Section 2.03.
26
(b) Subject to the provisions of Section 2.10, the Loans
comprising each ABR Borrowing shall bear interest at a rate per annum equal to
the Alternate Base Rate plus, at any time when the Applicable Percentage in
effect for Eurocurrency Standby Loans shall exceed 1.00% per annum, a percentage
equal to such Applicable Percentage minus 1.00% per annum.
(c) Subject to the provisions of Section 2.10, each Swingline
Loan shall bear interest for each day at a rate determined by JPMEL to represent
the average (rounded upwards, if necessary, to the next 1/100th of 1%) overnight
cost of funds in the applicable currency on such day of the Swingline Lenders
plus the Applicable Percentage that would be used on such day in determining the
interest rate applicable to a Eurocurrency Standby Loan. On the Business Day on
which any Swingline Loan is requested and on each successive Business Day when
any Swingline Loan is to be outstanding, each Swingline Lender will notify JPMEL
by telecopy of its overnight cost of funds in the applicable currency by 12:00
noon, Local Time. If such notice shall not be received from any Swingline Lender
by 12:00 noon, Local Time, on any day, the overnight cost of funds of such
Swingline Lender in the applicable currency for such day shall be conclusively
presumed to be equal to JPMEL's overnight cost of funds in such currency on such
day.
(d) Subject to the provisions of Section 2.10, each Fixed Rate
Loan shall bear interest at a rate per annum equal to the fixed rate of interest
offered by the Lender making such Loan and accepted by the Borrower pursuant to
Section 2.03.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that (i) interest on Borrowings denominated in Sterling
and (ii) interest computed by reference to the Alternate Base Rate at times when
the Alternate Base Rate is based on the Prime Rate shall be computed on the
basis of a year of 365 days, and in each case shall be payable on each Interest
Payment Date applicable to the relevant Loan (except as otherwise provided in
this Agreement). The applicable Alternate Base Rate, LIBO Rate or rate
applicable to Swingline Loans denominated in a Foreign Currency shall be
determined by the Applicable Agent, and such determination shall be conclusive
absent manifest error.
SECTION 2.10. DEFAULT INTEREST. If a Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, whether by scheduled maturity, notice of prepayment,
acceleration or otherwise, such Borrower shall owe interest, payable on demand,
to the extent permitted by law, on such defaulted amount up to (but not
including) the date of actual payment (after as well as before judgment) at a
rate per annum equal to the interest rate applicable to ABR Loans under Section
2.09(b) plus 2% per annum.
SECTION 2.11. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing denominated in
any currency:
(a) the Applicable Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means
do not exist for ascertaining the LIBO Rate for such Interest Period;
or
(b) the Applicable Agent is advised by a majority in interest
of the Lenders that would participate in such Borrowing that the LIBO
Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining their Loans included
in such Borrowing for such Interest Period;
27
then the Applicable Agent shall give notice thereof to the applicable Borrower
and the applicable Lenders by telecopy or telephone (confirmed by telecopy) as
promptly as practicable thereafter and, until the Applicable Agent notifies the
applicable Borrower and the applicable Lenders that the circumstances giving
rise to such notice no longer exist, (i) any Interest Election Request that
requests the conversion of any Borrowing denominated in such currency to, or
continuation of any Borrowing denominated in such currency as a Eurocurrency
Borrowing shall be ineffective, and any Eurocurrency Borrowing denominated in
such currency that is requested to be continued shall be (A) in the case of a
Borrowing denominated in Dollars, converted into an ABR Borrowing on the last
day of the then current Interest Period applicable thereto, and (b) in the case
of a Borrowing denominated in a Foreign Currency, converted into an ABR
Borrowing denominated in Dollars on the last day of the then current Interest
Period applicable thereto at the Exchange Rate in effect on such day, and (ii)
any Borrowing Request for a Eurocurrency Borrowing denominated in such currency
shall (A) in the case of a Borrowing denominated in Dollars, be deemed a request
for an ABR Borrowing, and (b) in the case of a Borrowing denominated in a
Foreign Currency, be ineffective. In the event any Borrowing denominated in a
Foreign Currency shall be converted into a Borrowing denominated in Dollars
pursuant to the preceding sentence, the applicable Borrower agrees to indemnify
the Lenders against any losses resulting from such conversion, including any
losses resulting from any Lender's inability, after obtaining knowledge of such
conversion, to exchange an amount in Dollars equal to the principal amount of
its Loan resulting from such conversion for an amount in the applicable Foreign
Currency equal to the amount of its converted Loan.
SECTION 2.12. TERMINATION AND REDUCTION OF COMMITMENTS. (a)
The Commitments shall be automatically terminated on the Termination Date.
(b) Upon at least three Business Days' prior irrevocable
telecopy notice to the Administrative Agent, the Company may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Total Commitment; PROVIDED, HOWEVER, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of US$1,000,000 and in a
minimum principal amount of US$5,000,000 and (ii) no such termination or
reduction shall be made which would reduce the Total Commitment to an amount
less than the aggregate outstanding principal amount of the Loans.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Lenders in accordance with their respective Commitments.
The Company shall pay to the Administrative Agent for the account of the
Lenders, on each date of reduction of any portion of the Total Commitment, the
Facility Fees on the amount of the Commitments so terminated accrued through the
date of such termination or reduction.
SECTION 2.13. PREPAYMENT. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Standby Borrowing, in
whole or in part, upon giving telecopy notice (or telephone notice promptly
confirmed by telecopy) to the Applicable Agent (which shall promptly notify each
Lender): (i) before 10:00 a.m., Local Time, three Business Days prior to
prepayment, in the case of Eurocurrency Loans, and (ii) before 10:00 a.m., Local
Time, one Business Day prior to prepayment, in the case of ABR Loans; PROVIDED,
HOWEVER, that each partial prepayment shall be in an amount which is an integral
multiple of the Borrowing Multiple and not less than the Borrowing Minimum. No
prepayment may be made in respect of any Competitive Borrowing.
(b) On the date of any termination or reduction of the
Commitments pursuant to Section 2.12(b), the Borrowers shall pay or prepay so
much of the Standby Borrowings as shall
28
be necessary in order that the sum of the Revolving Credit Exposure and the
aggregate Competitive Loan Exposures will not exceed the Total Commitment, after
giving effect to such termination or reduction.
(c) If (i) on any day when ABR Loans shall be outstanding or
(ii) on the last day of any Interest Period applicable to a Eurocurrency Loan,
the aggregate amount of the Lenders' Revolving Credit Exposures and Competitive
Loan Exposures shall exceed the aggregate amount of the Commitments, the
Borrowers will prepay Loans on such day in an amount equal to the lesser of (x)
the aggregate amount of the outstanding ABR Loans and Eurocurrency Loans with
Interest Periods ending on such day and (y) the amount necessary to eliminate
such excess. If on any day (i) the aggregate amount of the Lenders' Revolving
Credit Exposures and Competitive Loan Exposures shall exceed 105% of the
aggregate amount of the Commitments, or (ii) the sum of the Dollar Equivalents
of the outstanding Loans (including Swingline Loans) denominated in Foreign
Currencies shall exceed US$105,000,000, the Borrowers will promptly prepay Loans
in such amounts as shall be necessary to eliminate such excess.
(d) Each notice of prepayment shall specify the prepayment
date and the principal amount of each Borrowing (or portion thereof) to be
prepaid, shall be irrevocable and shall commit the applicable Borrower to prepay
such Borrowing (or portion thereof) by the amount stated therein on the date
stated therein. All prepayments under this Section 2.13 shall be subject to
Section 2.16 but otherwise without premium or penalty. All prepayments under
this Section 2.13 shall be accompanied by accrued interest on the principal
amount being prepaid to the date of payment.
SECTION 2.14. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by any Lender, or shall result in the
imposition on any Lender or the London interbank market of any other condition
affecting this Agreement, such Lender's Commitment or any Eurocurrency Loan or
Fixed Rate Loan made by such Lender, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurocurrency Loan or Fixed Rate Loan or to reduce the amount of any sum received
or receivable by such Lender with respect to any Eurocurrency Loan or Fixed Rate
Loan hereunder (whether of principal, interest or otherwise) by an amount deemed
by such Lender to be material, then such additional amount or amounts as will
compensate such Lender for such additional costs or reduction will be paid by
the Borrowers to such Lender upon demand. Notwithstanding the foregoing, no
Lender shall be entitled to request compensation under this paragraph with
respect to any Competitive Loan if the change giving rise to such request was
applicable to such Lender at the time of submission of the Competitive Bid
pursuant to which such Competitive Loan was made.
(b) If any Lender shall have determined that the adoption
after the date hereof of any law, rule, regulation or guideline arising out of
the July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital Measurement
and Capital Standards," or the adoption after the date hereof of any other law,
rule, regulation or guideline regarding capital adequacy, or any change in any
of the foregoing or in the interpretation or administration of any of the
foregoing by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
29
compliance by any Lender or any entity controlling a Lender (or any lending
office of such Lender or entity controlling such Lender) with 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 such Lender's capital (or the capital
of an entity controlling such Lender) as a consequence of this Agreement, such
Lender's Commitment or the Loans made by such Lender pursuant hereto to a level
below that which such Lender could have achieved but for such adoption, change
or compliance (taking into consideration such Lender's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time such additional amount or amounts as will compensate such Lender
for such reduction will be paid by the Borrowers to such Lender.
(c) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender as specified in
paragraph (a) or (b) above, as the case may be, shall be delivered to the
Company promptly by such Lender upon becoming aware of any costs pursuant to
paragraphs (a) or (b) above and shall be conclusive absent manifest error. The
Company shall pay each Lender the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not, except as
provided in the third sentence of this paragraph, constitute a waiver of such
Lender's right to demand compensation with respect to such period or any other
period. The protection of this Section shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed. No Lender shall be entitled to compensation under
this Section 2.14 for any costs incurred or reduction suffered with respect to
any date unless such Lender shall have notified the Company that it will demand
compensation for such costs or reductions not more than 90 days after the later
of (i) such date and (ii) the date on which such Lender shall have become aware
of such costs or reductions. Notwithstanding any other provision of this Section
2.14, no Lender shall demand compensation for any increased cost or reduction
referred to above if it shall not at the time be the general policy or practice
of such Lender to demand such compensation in similar circumstances under
comparable provisions of other credit agreements, if any.
SECTION 2.15. CHANGE IN LEGALITY. (a) Notwithstanding any
other provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurocurrency Loan or to give effect to its obligations
as contemplated hereby with respect to any Eurocurrency Loan, then, by written
notice to the Company and to the Applicable Agent, such Lender may:
(i) declare that Eurocurrency Loans will not thereafter be
made by such Lender hereunder, whereupon such Lender shall not submit a
Competitive Bid in response to a request for Eurocurrency Competitive
Loans and any request for a Eurocurrency Standby Borrowing shall, as to
such Lender only, be deemed a request for an ABR Loan unless such
declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurocurrency Loans made by
it be converted to ABR Loans, in which event all such Eurocurrency
Loans shall be automatically converted to ABR Loans as of the effective
date of such notice as provided in paragraph (b) below.
30
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurocurrency Loans that would have been made by such Lender or the
converted Eurocurrency Loans of such Lender shall instead be applied to repay
the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurocurrency Loans.
(b) For purposes of this Section 2.15, a notice by any Lender
shall be effective as to each Eurocurrency Loan, if lawful, on the last day of
the Interest Period currently applicable to such Eurocurrency Loan; in all other
cases such notice shall be effective on the date of receipt.
SECTION 2.16. INDEMNITY. The Borrowers shall indemnify each
Lender against any out-of-pocket loss or expense which such Lender may sustain
or incur as a consequence of (a) any failure to borrow or to refinance any Loan
hereunder after irrevocable notice of such borrowing or refinancing has been
given pursuant to Section 2.03 or 2.04, (b) any payment, prepayment or
conversion, or assignment required under Section 2.20, of a Eurocurrency Loan
required by any other provision of this Agreement (other than Section 2.15) or
otherwise made or deemed made on a date other than the last day of the Interest
Period, if any, applicable thereto, (c) any default in payment or prepayment of
the principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, whether by
scheduled maturity, acceleration, irrevocable notice of prepayment or otherwise)
or (d) the occurrence of any Event of Default, including, in each such case, any
loss or reasonable expense sustained or incurred or to be sustained or incurred
in liquidating or employing deposits from third parties acquired to effect or
maintain such Loan or any part thereof as a Eurocurrency Loan or a Fixed Rate
Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by such Lender, of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, refinanced or not borrowed
or so assigned (assumed to be the LIBO Rate applicable thereto or, in the case
of a Fixed Rate Loan, the fixed rate of interest applicable thereto) for the
period from the date of such payment, prepayment, refinancing or failure to
borrow or refinance or such assignment, to the last day of the Interest Period
for such Loan (or, in the case of a failure to borrow or refinance the Interest
Period for such Loan which would have commenced on the date of such failure)
over (ii) the amount of interest (as reasonably determined by such Lender) that
would be realized by such Lender in reemploying in similar investments the funds
so paid, prepaid or not borrowed or refinanced or so assigned for the remainder
of such period or Interest Period, as the case may be. A certificate of any
Lender setting forth any amount or amounts which such Lender is entitled to
receive pursuant to this Section 2.16 shall be delivered to the Borrowers and
shall be conclusive absent manifest error.
SECTION 2.17. PRO RATA TREATMENT. Except as required under
Section 2.14, each payment or prepayment of principal of any Standby Borrowing,
each payment of interest on the Standby Loans, each payment of the Facility
Fees, each reduction of the Commitments and each refinancing of any Borrowing
with a Standby Borrowing of any Type, shall be allocated pro rata among the
Lenders in accordance with their respective Commitments (or, if such Commitments
shall have expired or been terminated, in accordance with the respective
principal amounts of their outstanding Standby Loans). Each payment of principal
of any Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the
31
Lenders at any time, each outstanding Competitive Borrowing shall be deemed to
have utilized the Commitments of the Lenders (including those Lenders which
shall not have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments. Each Lender agrees that in
computing such Lender's portion of any Borrowing to be made hereunder, the
Applicable Agent may, in its discretion, round each Lender's percentage of such
Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18. SHARING OF SETOFFS. Each Lender agrees that if
it shall, through the exercise of a right of banker's lien, setoff or
counterclaim, or pursuant to a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising from, or in lieu
of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Standby Loan or Loans as a
result of which the unpaid principal portion of its Standby Loans shall be
proportionately less than the unpaid principal portion of the Standby Loans of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Standby Loans of such other Lender,
so that the aggregate unpaid principal amount of the Standby Loans and
participations in the Standby Loans held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Standby Loans then
outstanding as the principal amount of its Standby Loans prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans outstanding prior to such exercise of banker's lien,
setoff or counterclaim or other event; PROVIDED, HOWEVER, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.18
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. Any
Lender holding a participation in a Standby Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing to such Lender by reason
thereof as fully as if such Lender had made a Standby Loan in the amount of such
participation.
SECTION 2.19. PAYMENTS. (a) The Borrowers shall make each
payment (including principal of or interest on any Borrowing and any Facility
Fees or other amounts) hereunder not later than 12:00 noon, Local Time, on the
date when due to the Applicable Agent in immediately available funds, without
setoff, counterclaim or other deductions, (i) in the case of any amount
denominated in Dollars, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, (xx) in the case
of any amount denominated in a Foreign Currency, at X.X. Xxxxxx Europe Limited,
000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxx XX0X0XX, or in any case, at such other address
as the Applicable Agent shall from time to time specify in a notice delivered to
the Company; PROVIDED that payments pursuant to Section 2.21 and Section 9.05
shall be made directly to the Persons entitled thereto; PROVIDED, FURTHER, that
the Applicable Agent shall distribute any such payments received by it for the
account of any Lender or other person promptly, in accordance with customary
banking practices, following receipt thereof to the appropriate lending office
or other address specified by such Lender or other person.
(b) Whenever any payment (including principal of or interest
on any Borrowing or any Facility Fees or other amounts) hereunder shall become
due, or otherwise would occur, on a day that is not a Business Day, such payment
may be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of interest or Facility Fees,
if applicable.
32
(c) All payments hereunder of principal or interest in respect
of any Loan shall be made in the currency of such Loan; all other payments
hereunder and under each other Loan Document shall be made in Dollars.
SECTION 2.20. DUTY TO MITIGATE; ASSIGNMENT OF COMMITMENTS
UNDER CERTAIN CIRCUMSTANCES. (a) Any Lender (or Transferee) claiming any
additional amounts payable pursuant to Section 2.14 or Section 2.21 or
exercising its rights under Section 2.15 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested by the Company or to change the jurisdiction of its
applicable lending office if the making of such a filing or change would avoid
the need for or reduce the amount of any such additional amounts which may
thereafter accrue or avoid the circumstances giving rise to such exercise and
would not, in the sole determination of such Lender (or Transferee), be
otherwise disadvantageous to such Lender (or Transferee).
(b) In the event that any Lender shall have delivered a notice
or certificate pursuant to Section 2.11(b), 2.14 or 2.15, or the Borrower shall
be required to make additional payments to any Lender under Section 2.21, the
Company shall have the right, at its own expense (which shall include the
processing and recordation fee referred to in Section 9.04(b)), upon notice to
such Lender, the Administrative Agent and the London Agent to require such
Lender to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in Section 9.04) all interests, rights and
obligations contained hereunder to another financial institution approved by the
Administrative Agent (which approval shall not be unreasonably withheld) which
shall assume such obligations; provided that (i) no such assignment shall
conflict with any law, rule or regulation or order of any Governmental Authority
and (ii) the assignee or the Borrowers, as the case may be, shall pay to the
affected Lender in immediately available funds on the date of such assignment
the principal of and interest accrued to the date of payment on the Loans made
by it hereunder and all other amounts accrued for its account or owed to it
hereunder.
SECTION 2.21. TAXES. (a) Any and all payments to the Lenders
hereunder shall be made, in accordance with Section 2.19, free and clear of and
without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
EXCLUDING (i) income taxes imposed on the net income of the Administrative
Agent, the London Agent or any Lender (or any transferee or assignee thereof,
including a participation holder (any such entity a "Transferee")) and (ii)
franchise taxes imposed on the net income of the Administrative Agent, the
London Agent or any Lender (or Transferee), in each case by the jurisdiction
under the laws of which the Administrative Agent, the London Agent or such
Lender (or Transferee) is organized or any political subdivision thereof (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, being called "Taxes"). If any
Borrower shall be required to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender (or any Transferee), the Administrative Agent or
the London Agent, (i) the sum payable shall be increased by the amount (an
"additional amount") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.21) such Lender (or Transferee), the Administrative Agent or the London Agent
(as the case may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other
33
excise or property taxes, charges or similar levies that arise from any payment
made hereunder or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement ("Other Taxes").
(c) The Borrowers shall indemnify each Lender (or Transferee),
the Administrative Agent and the London Agent for the full amount of Taxes and
Other Taxes paid by such Lender (or Transferee), the Administrative Agent or the
London Agent, as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses))
arising therefrom or with respect thereto. A certificate as to the amount of
such payment or liability prepared by a Lender, the Administrative Agent on its
behalf or the London Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Lender (or Transferee), the Administrative
Agent or the London Agent,, as the case may be, makes written demand therefor.
(d) If a Lender (or Transferee), the Administrative Agent or
the London Agent shall become aware that it is entitled to claim a refund from a
Governmental Authority in respect of Taxes or Other Taxes as to which it has
been indemnified by the Borrowers, or with respect to which the Borrowers have
paid additional amounts, pursuant to this Section 2.21, it shall promptly notify
the Borrowers of the availability of such refund claim and shall, within 30 days
after receipt of a request by the Borrowers, make a claim to such Governmental
Authority for such refund at the Borrowers' expense. If a Lender (or
Transferee), the Administrative Agent or the London Agent receives a refund
(including pursuant to a claim for refund made pursuant to the preceding
sentence) in respect of any Taxes or Other Taxes as to which it has been
indemnified by the Borrowers or with respect to which the Borrowers have paid
additional amounts pursuant to this Section 2.21, it shall within 30 days from
the date of such receipt pay over such refund to the Borrowers (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrowers
under this Section 2.21 with respect to the Taxes or Other Taxes giving rise to
such refund), without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); PROVIDED, HOWEVER, that the
Borrowers, upon the request of such Lender (or Transferee), the Administrative
Agent or the London Agent, agree to repay the amount paid over to the Borrowers
(plus penalties, interest or other charges) to such Lender (or Transferee), the
Administrative Agent or the London Agent in the event such Lender (or
Transferee), the Administrative Agent or the London Agent is required to repay
such refund to such Governmental Authority.
(e) As soon as practicable after the date of any payment of
Taxes or Other Taxes by the Borrowers to the relevant Governmental Authority,
the Borrowers will deliver to the Applicable Agent, at its address referred to
in Section 9.01, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.21
shall survive the payment in full of the principal of and interest on all Loans
made hereunder for a period of 3 years.
(g) Each Non-U.S. Lender shall deliver to the Company and the
Administrative Agent two copies of either United States Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8, a certificate representing that such Non-U.S. Lender
34
is not a bank for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Company under
this Agreement. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this Section 2.21(g), a Non-U.S. Lender
shall not be required to deliver any form pursuant to this Section 2.21(g) that
such Non-U.S. Lender is not legally able to deliver.
(h) The Borrowers shall not be required to indemnify any
Non-U.S. Lender, or to pay any additional amounts to any Non-U.S. Lender, in
respect of United States Federal withholding tax pursuant to paragraph (a) or
(c) above to the extent that (i) the obligation to withhold amounts with respect
to United States Federal withholding tax existed on the date such Non-U.S.
Lender became a party to this Agreement (or, in the case of a Transferee that is
a participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office, the
date such Non-U.S. Lender designated such New Lending Office with respect to a
Loan; PROVIDED, HOWEVER, that this clause (i) shall not apply to any Transferee
or New Lending Office that becomes a Transferee or New Lending Office as a
result of an assignment, participation, transfer or designation made at the
request of the Company; and PROVIDED FURTHER, HOWEVER, that this clause (i)
shall not apply to the extent the indemnity payment or additional amounts any
Transferee, or Lender (or Transferee) through a New Lending Office, would be
entitled to receive (without regard to this clause (i)) do not exceed the
indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Transferee, or Lender (or Transferee) making
the designation of such New Lending Office, would have been entitled to receive
in the absence of such assignment, participation, transfer or designation or
(ii) the obligation to pay such additional amounts would not have arisen but for
a failure by such Non-U.S. Lender to comply with the provisions of paragraph (g)
above.
(i) Any Lender (or Transferee) claiming any indemnity payment
or additional amounts payable pursuant to this Section 2.21 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the sole determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
(j) Nothing contained in this Section 2.21 shall require any
Lender (or Transferee), the Administrative Agent or the London Agent to make
available any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 2.22. ADDITIONAL RESERVE COSTS. (a) If and for so long
as any Lender is required to make special deposits with the Bank of England, to
maintain reserve asset ratios or to pay fees, in each case in respect of such
Lender's Eurocurrency Loans, such Lender may require the applicable Borrower to
pay, contemporaneously with each payment of interest on each
35
of such Loans, additional interest on such Loan at a rate per annum equal to the
Mandatory Costs Rate calculated in accordance with the formula and in the manner
set forth in Exhibit F hereto.
(b) If and for so long as any Lender is required to comply
with reserve assets, liquidity, cash margin or other requirements of any
monetary or other authority (including any such requirement imposed by the
European Central Bank or the European System of Central Banks, but excluding
requirements reflected in the Mandatory Costs Rate) in respect of any of such
Lender's Eurocurrency Loans, such Lender may require the applicable Borrower to
pay, contemporaneously with each payment of interest on each of such Lender's
Eurocurrency Loans subject to such requirements, additional interest on such
Loan at a rate per annum specified by such Lender to be the cost to such Lender
of complying with such requirements in relation to such Loan.
(c) Any additional interest owed pursuant to paragraph (a) or
(b) above shall be determined by the applicable Lender, which determination
shall be conclusive absent manifest error, and notified to the applicable
Borrower (with a copy to the Administrative Agent) at least five Business Days
before each date on which interest is payable for the relevant Loan, and such
additional interest so notified to the applicable Borrower by such Lender shall
be payable to the Applicable Agent for the account of such Lender on each date
on which interest is payable for such Loan.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of the Lenders
that:
SECTION 3.01. CORPORATE EXISTENCE AND POWER. The Company and
each Borrowing Subsidiary 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 3.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION;
CONTRAVENTION. The execution, delivery and performance by the Company of this
Agreement (a) is within the Company's corporate powers, (b) has been duly
authorized by all necessary corporate action, (c) requires no action by or in
respect of, or filing with, any Governmental Authority and (d) does not (i)
contravene, or constitute a default under, any applicable provision of law or
regulation either of the United States or a particular state thereof or of the
certificate of incorporation or by-laws of the Company or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the Company
or (ii) result in the creation or imposition of any Lien on any asset of the
Company or any of its Subsidiaries.
SECTION 3.03. BINDING EFFECT. This Agreement constitutes a
valid and binding agreement of the Company, enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of the rights of its
creditors generally and subject to general legal and equitable principles with
respect to the availability of particular remedies.
SECTION 3.04. FINANCIAL INFORMATION. (a) The unaudited
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of December 31, 2001, and the related
36
consolidated statements of earnings and changes in financial position for the
fiscal year then ended, a copy of which has been delivered to each of the
Lenders, fairly present, in conformity with GAAP, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and changes in financial position for
such fiscal year.
(b) The unaudited consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of September 30, 2001, and the related
unaudited consolidated statements of earnings and changes in financial position
for the nine months then ended, set forth in the Company's quarterly report on
Form 10-Q for the fiscal quarter ended September 30, 2001, a copy of which has
been delivered to each of the Lenders, fairly present, in conformity with GAAP
applied on a basis consistent with the financial statements referred to in
paragraph (a) of this Section 3.04, the consolidated financial position of the
Company and its Consolidated Subsidiaries as of such date and their consolidated
results of operations and changes in financial position for such nine month
period (subject to normal year-end adjustments).
SECTION 3.05. LITIGATION. There is no action, suit or
proceeding pending against, or to the knowledge of the Company threatened
against or affecting, the Company 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 a final adverse decision which could materially
adversely affect the business, consolidated financial position or consolidated
results of operations of the Company and its Consolidated Subsidiaries taken as
a whole or which in any manner draws into question the validity of this
Agreement.
SECTION 3.06. COMPLIANCE WITH ERISA. The Company and each
ERISA Affiliate has fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and is in compliance
in all material respects with the presently applicable provisions of ERISA and
the Code relating to the Plans, and has not incurred any liability to the PBGC
or a Plan under Title IV of ERISA.
SECTION 3.07. TAXES. United States Federal income tax returns
of the Company and its Subsidiaries have been examined and closed through the
fiscal year ended December 29, 1996. The Company 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 material taxes due
pursuant to such returns or pursuant to any assessment received by the Company
or any Subsidiary which the Company or any Subsidiary is not disputing in a good
faith manner. The charges, accruals and reserves on the books of the Company and
its Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Company, adequate.
SECTION 3.08. SUBSIDIARIES. Attached hereto as Schedule 3.08
is a schedule which correctly identifies all Subsidiaries as of the date of this
Agreement. Except as noted on Schedule 3.08, all of the issued and outstanding
shares of the capital stock of each Subsidiary is duly issued and outstanding,
fully paid and non-assessable and except for directors' qualifying shares and
shares issued solely for the purpose of satisfying local requirements concerning
the minimum number of shareholders is owned by the Company or a Subsidiary free
and clear of any mortgage, pledge, lien or encumbrance.
37
SECTION 3.09. REPRESENTATIONS AND WARRANTIES OF EACH BORROWING
SUBSIDIARY. Each Borrowing Subsidiary shall be deemed by the execution and
delivery of a Borrowing Subsidiary Agreement to have represented and warranted
as of the date thereof as follows:
(a) It is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and is
duly qualified to do business and in good standing in each other jurisdiction in
which it owns property and/or conducts its business and in which failure to be
so qualified and in good standing would have a materially adverse effect on the
business of such Borrowing Subsidiary.
(b) The execution, delivery and performance by it of its
Borrowing Subsidiary Agreement, and the performance by it of the provisions of
this Agreement applicable to it, are within its corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (i) its
charter or by-laws (or the equivalent thereof) or (ii) any law or regulation or
any agreement, judgment, injunction, order, decree or other instrument binding
on or affecting it.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority is required for the due
execution, delivery and performance by it of its Borrowing Subsidiary Agreement
or for the performance by it of the provisions of this Agreement applicable to
it, except for those which have been duly obtained or made and are in full force
and effect.
(d) It is not in breach of or default under any agreement to
which it is a party or which is binding on it or any of its assets to an extent
or in a manner which would have a material adverse effect on its ability to
perform its obligations hereunder after taking into consideration its other
financial obligations.
(e) This Agreement is a legal, valid and binding obligation of
such Borrowing Subsidiary enforceable against it in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of the rights of its creditors
generally and subject to general legal and equitable principles with respect to
the availability of particular remedies.
(f) The proceeds of each Loan made to it will be used solely
for the purposes referred to in the preamble to this Agreement.
SECTION 3.10. FEDERAL RESERVE REGULATIONS. (a) Neither any
Borrower nor any Subsidiary is engaged principally, or as a substantial part of
its activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock (within the meaning of Regulation U).
(b) No part of the proceeds of any Loan has been or will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, in any manner or for any purpose that has resulted or will result in
a violation of Regulation U.
SECTION 3.11. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT. Neither any Borrower nor any Subsidiary is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
38
SECTION 3.12. ENVIRONMENTAL AND SAFETY MATTERS. With respect
to all facilities owned and operated by the Company and its Subsidiaries, or at
which the Company or any of its Subsidiaries has a leasehold interest, except as
set forth in Schedule 3.12 (i) the Company and each Subsidiary is in compliance
in all material respects with all Federal, state, local and other statutes,
ordinances, orders, judgments, rulings and regulations relating to environmental
pollution or to environmental regulation or control or to employee health or
safety (collectively "Environmental Laws") except where the failure to be in
compliance so would not be reasonably likely, individually or in the aggregate,
to result in a Material Adverse Effect; (ii) neither the Company nor any
Subsidiary has received notice of any material failure so to comply, which
non-compliance neither has been remedied nor is the subject of the Company's
good faith efforts to achieve compliance, except where the failure to be in
compliance would not be reasonably likely, individually or in the aggregate, to
result in a Material Adverse Effect and (iii) the Company is aware of no events,
conditions or circumstances involving environmental pollution or contamination
or employee health or safety that in its judgment would be reasonably likely to
result in a Material Adverse Effect.
SECTION 3.13. NO MATERIAL ADVERSE CHANGE. Since December 31,
2000, there has occurred no event, condition or change in or affecting the
Company or the Subsidiaries that, individually or in the aggregate with other
such events, conditions or changes, has had or could reasonably be expected to
have a Material Adverse Effect.
SECTION 3.14. SOLVENCY. On the Closing Date, (i) the fair
value of the assets of the Company and the Subsidiaries on a consolidated basis,
at a fair valuation, will exceed their debts and liabilities, subordinated,
contingent or otherwise; (ii) the present fair saleable value of the property of
the Company and the Subsidiaries on a consolidated basis will be greater than
the amount that will be required to pay their probable liability on their debts
and other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (iii) the Company and the
Subsidiaries will on a consolidated basis be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (iv) the Company and the
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Closing Date.
ARTICLE IV
CONDITIONS OF EFFECTIVENESS AND LENDING
SECTION 4.01. ALL BORROWINGS. The obligations of the Lenders
to make Loans hereunder on the date of each Borrowing are subject to the
satisfaction of the following conditions:
(a) The Applicable Agent shall have received a notice of such
Borrowing as required by Section 2.03, Section 2.04 or Section 2.05, as
applicable.
(b) The representations and warranties set forth in Article
III (except in the case of a refinancing that does not increase the
aggregate principal amount of Loans of any Lender outstanding, the
representations set forth in Section 3.05 and 3.12) hereof shall be
true and correct in all material respects on and as of the date of such
Borrowing with the
39
same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an
earlier date.
(c) At the time of and immediately after such Borrowing no
Event of Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the applicable Borrower on the date of such Borrowing as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. EFFECTIVENESS. This Agreement shall become
effective upon the satisfaction of the following conditions:
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received the favorable
written opinion of Xxxx X. Xxxxx, Esq., dated the Closing Date and
addressed to the Lenders and satisfactory to Cravath, Swaine & Xxxxx,
counsel for the Agents, to the effect set forth in Exhibit D-1 hereto.
(c) The Administrative Agent shall have received (i) a copy of
the certificate of incorporation, including all amendments thereto, of
the Company, certified as of a recent date by the Secretary of State of
its state of incorporation, and a certificate as to the good standing
of the Company as of a recent date from such Secretary of State; (ii) a
certificate of the Clerk or an Assistant Clerk of the Company dated the
Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Company as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of
the Company authorizing the execution, delivery and performance of this
Agreement and the Borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and
effect, (C) that the certificate of incorporation referred to in clause
(i) above has not been amended since the date of the last amendment
thereto shown on the certificate of good standing furnished pursuant to
such clause (i) and (D) as to the incumbency and specimen signature of
each officer executing this Agreement or any other document delivered
in connection herewith on behalf of the Company; and (iii) a
certificate of another officer of the Company as to the incumbency and
specimen signature of the Clerk or Assistant Clerk executing the
certificate pursuant to (ii) above.
(d) The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer
of the Company, confirming compliance with the conditions precedent set
forth in paragraphs (b) and (c) of Section 4.01.
(e) No Loan shall be outstanding under the Existing Credit
Agreement, and all interest, fees and other amounts accrued for the
accounts of or otherwise owed to the Administrative Agent or the
lenders thereunder through the date immediately preceding the Closing
Date shall have been paid.
40
SECTION 4.03. FIRST BORROWING BY EACH BORROWING SUBSIDIARY.
On the first date on which Loans are made to each Borrowing Subsidiary:
(a) The Administrative Agent shall have received the favorable
written opinion of counsel for such Borrowing Subsidiary, dated the
date of such Loans, addressed to the Lenders and satisfactory to
Cravath, Swaine & Xxxxx, counsel for the Agents, addressing the matters
set forth in Exhibit D-2 hereto (and, in the case of any foreign
Borrowing Subsidiary, such other matters as the Administrative Agent or
its counsel may request).
(b) Each Lender shall have received a copy of the Borrowing
Subsidiary Agreement executed by such Borrowing Subsidiary.
(c) Such Loans shall not violate any law, rule or regulation
binding on any of the Lenders.
(d) Each Lender shall have received from the Company an
unaudited consolidated balance sheet and related consolidated
statements of earnings and changes in financial position for the fiscal
year most recently ended of such Borrowing Subsidiary.
ARTICLE V
COVENANTS
The Company covenants and agrees with each Lender, the
Administrative Agent and the London Agent that so long as this Agreement shall
remain in effect or the principal of or interest on any Loan, any Facility Fees
or any other amounts payable hereunder shall be unpaid, unless the Required
Lenders shall otherwise consent in writing:
SECTION 5.01. INFORMATION. The Company will give the
Administrative Agent prompt written notice of any change in any Rating that
results in a change in the Category on which the Applicable Percentage is based.
The Company will deliver to each of the Lenders:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year and
the related consolidated statements of earnings 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 by Xxxxxx Xxxxxxxx & Co. or other
independent public accountants of nationally recognized standing acceptable to
the Required Lenders and accompanied by an opinion of such accountants (which
shall not be qualified in any material respect) to the effect that such
consolidated financial statements fairly present the financial condition and
results of operations of the Company and the Consolidated Subsidiaries in
accordance with GAAP;
(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 Company,
a consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of earnings
and cash flows for such quarter and for the portion of the Company's fiscal year
ended at the end of such quarter, setting forth in each case in comparative
41
form the figures for the corresponding quarter and the corresponding portion of
the Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, compliance with GAAP and
consistency by a Financial Officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of a
Financial Officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with
the requirements of Sections 5.06 and 5.07 on the date of such financial
statements and (ii) stating whether there exists on the date of such certificate
any Default and, if any Default then exists, setting forth the details thereof
and the action which the Company is taking or proposes to take with respect
thereto;
(d) forthwith upon the occurrence of any Default, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth the details thereof and the action which the Company
is taking or proposes to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all annual or
quarterly reports and upon request by any Lender copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) which the Company shall have filed with the
Securities and Exchange Commission;
(g) (i) as soon as possible after, and in any event within 30
days after the Company or any ERISA Affiliate knows or has reason to know that,
any Reportable Event has occurred that alone or together with any other
Reportable Event could reasonably be expected to result in liability of the
Company to the PBGC in an aggregate amount exceeding US$5,000,000, a statement
of a Financial Officer setting forth details as to such Reportable Event and the
action that the Company proposes to take with respect thereto, together with a
copy of the notice, if any, of such Reportable Event given to the PBGC, (ii)
promptly after receipt thereof, a copy of any notice that the Company or any
ERISA Affiliate may receive from the PBGC relating to the intention of the PBGC
to terminate any Plan or Plans (other than a Plan maintained by an ERISA
Affiliate that is considered an ERISA Affiliate only pursuant to subsection (m)
or (o) of Code Section 414) or to appoint a trustee to administer any such Plan,
(iii) within 10 days after the due date for filing with the PBGC pursuant to
Section 412(n) of the Code a notice of failure to make a required installment or
other payment with respect to a Plan, a statement of a Financial Officer setting
forth details as to such failure and the action that the Company proposes to
take with respect thereto, together with a copy of any such notice given to the
PBGC and (iv) promptly and in any event within 30 days after receipt thereof by
the Company or any ERISA Affiliate from the sponsor of a Multiemployer Plan, a
copy of each notice received by the Company or any ERISA Affiliate concerning
(A) the imposition of Withdrawal Liability or (B) a determination that a
Multiemployer Plan is, or is expected to be, terminated or in reorganization,
both within the meaning of Title IV of ERISA; and
(h) from time to time such additional information regarding
the financial position or business of the Company as any Lender may reasonably
request.
SECTION 5.02. CORPORATE EXISTENCE; BUSINESSES AND PROPERTIES.
(a) The Company will, and will cause each Borrowing Subsidiary to, do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect its corporate existence.
42
(b) Except to the extent that failure to do so would not have
a Material Adverse Effect, the Company will, and will cause each Borrowing
Subsidiary to, (i) do or cause to be done all things necessary to preserve,
renew and keep in full force and effect all rights, licenses, permits and
franchises material to the conduct of the business of the Company and the
Subsidiaries, taken as a whole, (ii) comply with all laws and regulations
applicable to it and (iii) conduct its business in substantially the same manner
as heretofore conducted or as at the time permitted under applicable law.
SECTION 5.03. INSURANCE. The Company will, and will cause each
Subsidiary to, keep its insurable properties adequately insured at all times by
financially sound and reputable insurers, and maintain such other insurance, to
such extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies similarly situated
and in the same or similar businesses.
SECTION 5.04. LITIGATION AND OTHER NOTICES. The Company will
give each Lender prompt written notice of the following:
(a) the filing or commencement of, or any written threat or
written notice of intention of any person to file or commence, any
action, suit or proceeding which could reasonably be expected to result
in a Material Adverse Effect; and
(b) any development in the business or affairs of the Company
or any Subsidiary that has resulted in a Material Adverse Effect.
SECTION 5.05. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. The Company will, and will cause each Subsidiary to, maintain
financial records in accordance with GAAP and, upon reasonable notice, at all
reasonable times, permit (a) any authorized representative designated by any
Lender to discuss the affairs, finances and condition of the Company and the
Subsidiaries with a Financial Officer of the Company and such other officers as
the Company shall deem appropriate and (b) any authorized representative
designated by the Administrative Agent or the Required Lenders to visit and
inspect the properties of the Company and of any Subsidiary.
SECTION 5.06. CONSOLIDATED EBITDA TO CONSOLIDATED INTEREST
EXPENSE RATIO. The Company will not permit the ratio of (a) Consolidated EBITDA
to (b) Consolidated Interest Expense for any period of four consecutive fiscal
quarters ending on the last day of any fiscal quarter to be less than 5:1.
SECTION 5.07. NET DEBT TO CAPITALIZATION RATIO. The Company
will not permit on any date the ratio of (a) Consolidated Net Indebtedness on
such date to (b) the sum of (i) Shareholders' Equity on such date and (ii)
Consolidated Net Indebtedness on such date to be greater than 0.55:1.00.
SECTION 5.08. NEGATIVE PLEDGE. Neither the Company nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien securing
Indebtedness on any asset now owned or hereafter acquired by it, except:
(a) Liens on all or part of the assets of Consolidated
Subsidiaries securing Indebtedness owing by Consolidated Subsidiaries
to the Company and Consolidated Subsidiaries;
43
(b) mortgages on real property or security interests in
personal property securing Indebtedness of the Company and Consolidated
Subsidiaries in an aggregate amount not exceeding ten percent (10%) of
the consolidated total assets of the Company and the Consolidated
Subsidiaries;
(c) Liens to secure taxes, assessments and other governmental
charges or claims for labor, material or supplies to the extent that
payment thereof shall not at the time be required to be made in
accordance with Section 3.07 hereof;
(d) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age,
pension or other social security obligations;
(e) Liens in respect of judgments or awards not exceeding
US$1,000,000 in the aggregate at any time, and any other Liens with
respect to which the execution or enforcement thereof is being
effectively stayed and the claims secured thereby are being contested
in good faith by appropriate proceedings;
(f) Liens of carriers, warehousemen, mechanics and
materialmen, and other like Liens, in existence less than 120 days from
the date of creation thereof;
(g) encumbrances consisting of easements, rights of way,
zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens under leases to which the Company or a Consolidated Subsidiary is
a party, and other similar encumbrances none of which in the opinion of
the Company interferes materially with the use of the property in the
ordinary conduct of the business of the Company and the Consolidated
Subsidiaries; and similar encumbrances on interests in real estate
located outside the United States, which defects do not individually or
in the aggregate have a material adverse effect on the business of the
Company individually or of the Company and the Consolidated
Subsidiaries on a consolidated basis; and
(h) to the extent that the value of all Margin Stock owned by
the Company and its Consolidated Subsidiaries (determined in accordance
with Regulation U) would otherwise exceed 25% of the value of the total
assets of the Company and its Consolidated Subsidiaries subject to this
Section 5.08 (as so determined), Liens on such excess Margin Stock (it
being understood that Margin Stock not in excess of 25% of the value of
such assets will be subject to the restrictions of this Section 5.08).
SECTION 5.09. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a)
The Company will not (i) consolidate or merge with or into any other person
unless (A) the Company shall be the surviving entity and (B) immediately
thereafter no Default or Event of Default shall have occurred and be continuing
or (ii) sell, lease or otherwise transfer all or any substantial part of its
assets to any other person. The Company will not sell, lease or otherwise
transfer any of its assets to any other person except for full and adequate
consideration.
(b) No Borrowing Subsidiary will (i) consolidate or merge with
or into any other person unless (A) if the surviving entity shall be other than
such Borrowing Subsidiary, (x) such surviving entity or the Company shall have
assumed in writing all obligations of such Borrowing Subsidiary relating to this
Agreement and (y) such surviving entity shall be 100% owned by the
44
Company and (B) no Default or Event of Default shall have occurred and be
continuing either before or immediately after such consolidation or merger or
(ii) sell, lease or otherwise transfer all or any substantial part of its assets
to any other person. No Borrowing Subsidiary will sell, lease or otherwise
transfer any of its assets to any other person except for full and adequate
consideration.
(c) Notwithstanding anything in the foregoing to the contrary,
to the extent that the value of all Margin Stock owned by the Company and its
Consolidated Subsidiaries (determined in accordance with Regulation U) would
otherwise exceed 25% of the value of the total assets of the Company and its
Consolidated Subsidiaries subject to this Section 5.09 (as so determined), the
restrictions contained in subsections (a)(ii) and (b)(ii) of this Section 5.09
shall not apply to such excess Margin Stock (it being understood that Margin
Stock not in excess of 25% of the value of such assets will be subject to the
restrictions of this Section 5.09).
SECTION 5.10. OWNERSHIP OF MARGIN STOCK. The Company will not,
and will not permit its Subsidiaries to, own Margin Stock to the extent the
value of such Margin Stock would exceed 25% of the value of the total assets of
the Company and its Consolidated Subsidiaries.
ARTICLE VI
EVENTS OF DEFAULT
In case of the happening of any of the following events (each
an "Event of Default"):
(a) any representation or warranty made or deemed made in or
in connection with the execution and delivery of this Agreement or the
Borrowings hereunder or any representation, warranty, statement or
information contained in any report, certificate, financial statement
or other instrument furnished in connection with this Agreement shall
prove to have been incorrect in any material respect when so made,
deemed made or furnished;
(b) default shall be made in the payment of any principal of
any Loan when and as the same shall become due and payable, whether at
the due date thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Loan or any Facility Fee or any other amount (other than an amount
referred to in paragraph (b) above) due hereunder, when and as the same
shall become due and payable, and such default shall continue
unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance
of any covenant, condition or agreement contained in Sections 5.02 or
5.06 through 5.09;
(e) default shall be made in the due observance or performance
of any covenant, condition or agreement contained herein (other than
those specified in paragraphs (b), (c) or (d) above) and such default
shall continue unremedied for a period of 10 days after notice thereof
from the Administrative Agent or any Lender to the Company;
45
(f) the Company or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in an aggregate principal amount in excess of
US$15,000,000, when and as the same shall become due and payable, or
(ii) fail to observe or perform any other term, covenant, condition or
agreement contained in any agreement or instrument evidencing or
governing any such Indebtedness if the effect of any failure referred
to in this clause (ii) is to cause, or to permit the holder or holders
of such Indebtedness or a trustee on its or their behalf (with or
without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Company or any
Subsidiary, or of a substantial part of the property or assets of the
Company or a Subsidiary, under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Subsidiary or
for a substantial part of the property or assets of the Company or a
Subsidiary or (iii) the winding up or liquidation of the Company or any
Subsidiary; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) the Company or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended,
or any other Federal or state bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in
a timely and appropriate manner, any proceeding or the filing of any
petition described in paragraph (g) above, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Subsidiary or
for a substantial part of the property or assets of the Company or any
Subsidiary, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the
foregoing;
(i) one or more final and nonappealable judgments for the
payment of money in an aggregate amount in excess of US$5,000,000 shall
be rendered against the Company, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
levy upon assets or properties of the Company or any Subsidiary to
enforce any such final and nonappealable judgment or judgments
aggregating in excess of US$5,000,000;
(j) a Reportable Event or Reportable Events, or a failure to
make a required installment or other payment (within the meaning of
Section 412(n)(l) of the Code), shall have occurred with respect to any
Plan or Plans that reasonably could be expected to result in liability
of the Company to the PBGC or to a Plan in an aggregate amount
exceeding US$5,000,000 and, within 30 days after the reporting of any
such Reportable Event to the Administrative Agent, the Administrative
Agent shall have notified the Company in writing that (i) the Required
Lenders have made a determination that, on the basis of such Reportable
Event or Reportable Events or the failure to make a required
46
payment, there are reasonable grounds (A) for the termination of such
Plan or Plans by the PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer such Plan or
Plans or (C) for the imposition of a lien in favor of a Plan and (ii)
as a result thereof an Event of Default exists hereunder; or a trustee
shall be appointed by a United States District Court to administer any
such Plan or Plans; or the PBGC shall institute proceedings to
terminate any Plan or Plans;
(k) (i) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan, (ii) the Borrower or
such ERISA Affiliate does not have reasonable grounds for contesting
such Withdrawal Liability or is not in fact contesting such Withdrawal
Liability in a timely and appropriate manner and (iii) the amount of
the Withdrawal Liability specified in such notice, when aggregated with
all other amounts required to be paid to Multiemployer Plans in
connection with Withdrawal Liabilities (determined as of the date or
dates of such notification), exceeds US$5,000,000 or requires payments
exceeding US$1,000,000 in any year;
(1) the Company or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, if solely as a result of such reorganization or
termination the aggregate annual contributions of the Company and its
ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or have been or are being terminated have been or will
be increased over the amounts required to be contributed to such
Multiemployer Plans for their most recently completed plan years by an
amount exceeding US$1,000,000;
(m) any guarantee purported to be created by Article VII
hereof shall cease to be, or shall be asserted by the Company not to
be, a valid and enforceable guarantee of the Guaranteed Obligations; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Facility Fees and all other liabilities of the Borrowers accrued
hereunder, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived anything contained herein to the contrary notwithstanding; and, in any
event with respect to the Company described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued
Facility Fees and all other liabilities of the Borrowers accrued hereunder shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived anything
contained herein to the contrary notwithstanding.
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ARTICLE VII
GUARANTEE
The Company unconditionally and irrevocably guarantees the due
and punctual payment and performance, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, of the
Guaranteed Obligations. The Company further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from it and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed Obligations.
The Company waives presentment to, demand of payment from and
protest to the Borrowing Subsidiaries of any of the Guaranteed Obligations, and
also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. The obligations of the Company hereunder shall not be affected by
(a) the failure of any Lender or any Agent to assert any claim or demand or to
enforce any right or remedy against the Borrowing Subsidiaries under the
provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Agreement, any
guarantee or any other agreement; or (c) the failure of any Lender or any Agent
to exercise any right or remedy against any other guarantor of the Guaranteed
Obligations.
The Company further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by any Agent or any Lender to any security, if
any, held for payment of the Guaranteed Obligations or to any balance of any
deposit account or credit on its books, in favor of the Borrowing Subsidiaries
or any other person.
The obligations of the Company hereunder shall not be subject
to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Guaranteed Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of the Company
hereunder shall not be discharged or impaired or otherwise affected by the
failure of any Agent or any Lender to assert any claim or demand or to enforce
any remedy under this Agreement, any guarantee or any other agreement, by any
waiver or modification of any provision of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Guaranteed
Obligations, or by any other act or omission which may or might in any manner or
to any extent vary the risk of the Company or otherwise operate as a discharge
of the Company as a matter of law or equity.
To the extent permitted by applicable law, the Company waives
any defense based on or arising out of any defense available to the Borrowing
Subsidiaries, including any defense based on or arising out of any disability of
the Borrowing Subsidiaries, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrowing Subsidiaries, other than final payment in full
of the Guaranteed Obligations. The Agents and the Lenders may, at their
election, foreclose on any security held by one or more of them by one or more
judicial or non-judicial sales, or exercise any other right or remedy available
to them against the Borrowing Subsidiaries, or any security without affecting or
impairing in any way the liability of the Company hereunder except to the extent
the Guaranteed Obligations have been fully and finally paid. The Company waives
any defense arising out of any such election even though such election operates
to impair
48
or to extinguish any right of reimbursement or subrogation or other right or
remedy of the Company against any Borrowing Subsidiary or any security.
The Company further agrees that its guarantee shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Lender upon the bankruptcy or
reorganization of any Borrowing Subsidiary or otherwise.
In furtherance of the foregoing and not in limitation of any
other right which any Agent or any Lender may have at law or in equity against
the Company by virtue hereof, upon the failure of any Borrowing Subsidiary to
pay any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, the Company
hereby promises to and will, upon receipt of written demand by any Agent or any
Lender, forthwith pay or cause to be paid to such Agent or such Lender in cash
the amount of such unpaid Guaranteed Obligation.
Upon payment by the Company of any sums to any Agent or any
Lender, as provided above, all rights of the Company against the other Borrowers
arising as a result thereof by way of right of subrogation or otherwise shall in
all respects be subordinated and junior in right of payment to the prior
indefeasible payment in full of all the Guaranteed Obligations to the Agents and
the Lenders.
The Company further agrees that if payment in respect of any
obligation of a Borrowing Subsidiary guaranteed hereunder shall be due in a
currency other than Dollars and/or at a place of payment other than New York
City and if, by reason of any legal prohibition, disruption of currency or
foreign exchange markets, war or civil disturbance or other event, payment of
such obligation in such currency or at such place of payment shall be impossible
or, in the judgment of any Lender, not consistent with the protection of its
rights or interests, then, at the election of such Lender, the Company shall
make payment of such obligation in Dollars (based upon the applicable Exchange
Rate in effect on the date of payment) and/or in New York City. In the event
that any payment by the Company in respect of any obligation of a Borrowing
Subsidiary is made in a currency other than the currency in which such
obligation is denominated, the Company agrees to indemnify the Lenders against
any losses resulting from any currency conversion, including any losses
resulting from any Lender's inability, after obtaining knowledge of such
conversion, to exchange an amount received by it in any currency for an amount
in the currency in which the relevant obligation is denominated equal to the
amount of the relevant obligation.
ARTICLE VIII
THE AGENTS
In order to expedite the transactions contemplated by this
Agreement, JPMorgan Chase Bank is hereby appointed to act as Administrative
Agent and JPMEL is hereby appointed to act as London Agent, on behalf of the
Lenders. Each of the Lenders hereby irrevocably authorizes the Agents to take
such actions on behalf of such Lender or holder and to exercise such powers as
are specifically delegated to the Agents by the terms and provisions hereof,
together with such actions and powers as are reasonably incidental thereto. The
Agents are hereby expressly authorized by the Lenders, without hereby limiting
any implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans and all other
49
amounts due to the Lenders hereunder, and promptly to distribute to each Lender
its proper share of each payment so received; (b) to give notice on behalf of
each of the Lenders to the Borrowers of any Event of Default of which the Agents
have actual knowledge acquired in connection with their agency hereunder; and
(c) to distribute promptly to each Lender copies of all notices, financial
statements and other materials delivered by the Borrowers pursuant to this
Agreement as received by the Applicable Agent.
Neither the Agents nor any of their directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for their own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein or the contents
of any document delivered in connection herewith, or be required to ascertain or
to make any inquiry concerning the performance or observance by the Borrowers of
any of the terms, conditions, covenants or agreements contained in this
Agreement. The Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or other instruments or agreements. The Agents may deem and treat the
Lender that makes any Loan as the holder of the indebtedness resulting therefrom
for all purposes hereof until it shall have received notice from such Lender,
given as provided herein, of the transfer thereof. The Agents shall in all cases
be fully protected in acting, or refraining from acting, in accordance with
written instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Agents shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by them in good faith to be genuine and correct and to have
been signed or sent by the proper person or persons. Neither the Agents nor any
of their directors, officers, employees or agents shall have any responsibility
to the Borrowers on account of the failure of or delay in performance or breach
by any other Lender of any of its obligations hereunder or to any Lender on
account of the failure of or delay in performance or breach by any other Lender
or the Borrowers of any of their respective obligations hereunder or in
connection herewith. The Agents may execute any and all duties hereunder by or
through agents or employees and shall be entitled to rely upon the advice of
legal counsel selected by them with respect to all matters arising hereunder and
shall not be liable for any action taken or suffered in good faith by them in
accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Agents shall be under
no duty to take any discretionary action permitted to be taken by them pursuant
to the provisions of this Agreement unless it shall be requested in writing to
do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent
as provided below, any Agent may resign at any time by notifying the Lenders and
the Company. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor Agent (which Agent, so long as no Event of Default
shall exist, be reasonably acceptable to the Company). If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then, the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least US$500,000,000 or an Affiliate
of any such bank. Upon the acceptance of any appointment as Agent hereunder by a
successor bank, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent and the retiring
Agent shall be discharged from its duties and obligations hereunder. After the
Agent's resignation hereunder, the provisions of this Article and Section 9.05
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
50
With respect to the Loans made by it hereunder, the
Administrative Agent in its individual capacity and not as Administrative Agent
shall have the same rights and powers as any other Lender and may exercise the
same as though it were not the Administrative Agent, and the Administrative
Agent and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrowers or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Agents, on demand, in
the amount of its pro rata share (based on its Commitment hereunder or, if the
Commitments shall have been terminated, the amount of its outstanding Loans) of
any out-of-pocket expenses incurred for the benefit of the Lenders by the
Agents, including reasonable counsel fees and compensation of agents paid for
services rendered on behalf of the Lenders, which shall not have been reimbursed
by the Borrowers and (ii) to indemnify and hold harmless each Agent and any of
its directors, officers, employees or agents, on demand, in the amount of such
pro rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by it under this
Agreement to the extent the same shall not have been reimbursed by the
Borrowers; PROVIDED that no Lender shall be liable to any Agent for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of such Agent or any of its directors,
officers, employees or agents. Each Lender agrees that any allocation made in
good faith by the Administrative Agent of expenses or other amounts referred to
in this paragraph between this Agreement and the Five-Year Facility shall be
conclusive and binding for all purposes.
Each Lender acknowledges that it has, independently and
without reliance upon the Agents or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except as otherwise expressly provided
herein, notices and other communications provided for herein shall be in writing
and shall be delivered by hand or overnight courier service, mailed or sent by
telecopy, as follows:
(a) if to any Borrower, to PerkinElmer, Inc., 00 Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention of Treasurer
(Telecopy No. 781-431-4113);
(b) if to the Administrative Agent, to it at One Chase
Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxx
Xxxxxxxxxxx (Telecopy No. 212-552-5777);
51
(c) if to the London Agent, to it at X.X. Xxxxxx Europe
Limited, 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxx XX0X0XX, Attention of Loans
Agency Division (Telecopy No. 011-44-171-777-2360); with a copy to
the Administrative Agent as provided in paragraph (b) above; and
(d) if to a Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants,
agreements, representations and warranties made by the Borrowers herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon by
the Lenders and shall survive the making by the Lenders of the Loans regardless
of any investigation made by the Lenders or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any Facility Fee or any other amount payable under this Agreement is
outstanding and unpaid or the Commitments have not been terminated.
SECTION 9.03. BINDING EFFECT. This Agreement shall become
effective when it shall have been executed by the Company, the Administrative
Agent and the London Agent and when the Administrative Agent shall have received
copies hereof (telecopied or otherwise) which, when taken together, bear the
signature of each Lender, and when the conditions set forth in Section 4.02
shall have been satisfied, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrowers shall not have the right to assign any rights
hereunder or any interest herein without the prior consent of all the Lenders.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any party that are contained in this
Agreement shall bind and inure to the benefit of its successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
PROVIDED, HOWEVER, that (i) except in the case of an assignment to a Lender or a
domestic Affiliate of a Lender, the Company must give its prior written consent
to such assignment (which consent shall not be unreasonably withheld); PROVIDED,
HOWEVER, that the consent of the Company shall not be required to any such
assignment during the continuance of any Event of Default, (ii) the amount of
the Commitment (or, after the Termination Date, the outstanding Loans) of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than US$10,000,000 (or such lesser
amount as the Company and the Administrative Agent shall agree upon), (iii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, and a processing and recordation fee of
US$3,500 and (iv) the
52
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire. Upon acceptance and recording pursuant to
paragraph (e) of this Section 9.04, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto and, to the extent of the interest assigned by such Assignment
and Acceptance, have the rights and obligations of a Lender under this Agreement
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto (but shall
continue to be entitled to the benefits of Sections 2.14, 2.16, 2.21 and 9.05,
as well as to any Facility Fees accrued for its account hereunder and not yet
paid)). Notwithstanding the foregoing, any Lender assigning its rights and
obligations under this Agreement may retain any Competitive Loans made by it
outstanding at such time, and in such case shall retain its rights hereunder in
respect of any Loans so retained until such Loans have been repaid in full in
accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrowers or the performance or
observance by the Borrowers of any obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.01 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Agents, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent and the London Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent and the London Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all the obligations which by
the terms of this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its
offices in the City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and the principal amount of the Loans owing
to, each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive in the absence of manifest error
and the Borrowers, the Administrative Agent, the London Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by each party hereto, at any
reasonable time and from time to time upon reasonable prior notice.
53
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee together with an
Administrative Questionnaire completed in respect of the assignee (unless the
assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above and, if required, the written consent of
the Company to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register.
(f) Each Lender may sell participations to one or more banks
or other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) each
participating bank or other entity shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.14, 2.16, 2.21 and 2.22 to the
same extent as if it was the selling Lender (but limited to the amount that
could have been claimed by the selling Lender had it continued to hold the
interest of such participating bank or other entity), except that all claims
made pursuant to such Sections shall be made through such selling Lender, and
(iv) the Borrowers, the Administrative Agent, the London Agent and the other
Lenders shall continue to deal solely and directly with such selling Lender in
connection with such Lender's rights and obligations under this Agreement, and
such selling Lender shall retain the sole right to enforce the obligations of
the Borrowers relating to the Loans and to approve any amendment, modification
or waiver of any provision of this Agreement (other than amendments,
modifications or waivers decreasing any fees payable hereunder or the amount of
principal of or the rate at which interest is payable on the Loans, extending
any scheduled principal payment date or date fixed for the payment of interest
on the Loans or changing or extending the Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender;
PROVIDED that, prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall execute an agreement whereby such
assignee or participant shall agree (subject to customary exceptions) to
preserve the confidentiality of any such information.
(h) The Borrowers shall not assign or delegate any rights and
duties hereunder without the prior written consent of all Lenders.
(i) Any Lender may at any time pledge all or any portion of
its rights under this Agreement to a Federal Reserve Bank; PROVIDED that no such
pledge shall release any Lender from its obligations hereunder or substitute any
such Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, each Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to such Borrower by the assigning Lender
hereunder.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrowers agree,
jointly and severally, to pay the fees and disbursements of counsel for the
Administrative Agent and the London Agent in connection with entering into this
Agreement and in connection with any amendments, modifications or waivers of the
provisions hereof, and agree, jointly and severally, to pay the reasonable
out-of-pocket expenses incurred by the Administrative Agent and the London Agent
or any Lender in connection with the enforcement or protection of their rights
in
54
connection with this Agreement or the Loans made hereunder, including the
reasonable fees and disbursements of counsel for the Administrative Agent, the
London Agent or any Lender.
(b) The Borrowers agree, jointly and severally, to indemnify
the Administrative Agent, the London Agent, each Lender, each of their
Affiliates and the directors, officers, employees and agents of the foregoing
(each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees and expenses, incurred by or
asserted against any Indemnitee arising out of (i) the execution or delivery of
this Agreement or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or
the consummation of the transactions contemplated thereby, (ii) the use of the
proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto; PROVIDED that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are finally determined by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such Indemnitee
or from such Indemnitee's violation of the Federal securities laws prohibiting
xxxxxxx xxxxxxx.
(c) The provisions of this Section shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of the
Administrative Agent, the London Agent or any Lender. All amounts due under this
Section shall be payable on written demand therefor.
SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. WAIVERS; AMENDMENT. (a) No failure or delay of
any Agent or any Lender in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right
or power, or any abandonment or discontinuance of steps to enforce such a right
or power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Agents and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies which
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Borrower or any Subsidiary in any case shall
entitle such party to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrowers and the Required Lenders; provided,
HOWEVER, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of or any scheduled principal payment date or date for the
payment of any interest on any Loan, or waive or excuse any such payment or any
part thereof, or decrease the rate of interest on any Loan, without the prior
written consent of each Lender affected thereby, (ii) increase or extend the
Commitment or decrease the Facility Fee of any Lender or extend any date for
payment thereof without the prior written consent of such Lender, (iii) amend or
modify the provisions of Section 2.17 or Section 9.04(h), the provisions of this
Section or the definition of the "Required Lenders," or (iv) release the Company
from any of
55
its obligations under Article VII hereof without the prior written consent of
each Lender; PROVIDED FURTHER, HOWEVER, that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Agents hereunder without
the prior written consent of the Agents. Each Lender shall be bound by any
waiver, amendment or modification authorized by this Section and any consent by
any Lender pursuant to this Section shall bind any assignee of its rights and
interests hereunder.
SECTION 9.08. ENTIRE AGREEMENT. This Agreement constitutes the
entire contract among the parties relative to the subject matter hereof. Any
previous agreement among the parties with respect to the subject matter hereof
is superseded by this Agreement. Nothing in this Agreement, expressed or
implied, is intended to confer upon any party other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 9.09. SEVERABILITY. In the event any one or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.10. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.11. HEADINGS. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and are not to affect the construction of, or to be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. RIGHT OF SETOFF. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or account of the Company and any Borrowing Subsidiary now
or hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Company after such setoff and application made by such Lender, but
the failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which such Lender may have.
SECTION 9.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
Each Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the
56
foregoing and to paragraph (b) below, nothing in this Agreement shall affect any
right that any party hereto may otherwise have to bring any action or proceeding
relating to this Agreement against any other party hereto in the courts of any
jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any New
York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each Borrower hereby irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.14. WAIVER OF JURY TRIAL. Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have
to a trial by jury in respect of any litigation directly or indirectly arising
out of, under or in connection with this Agreement. Each party hereto (a)
certifies that no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in the
event of litigation, seek to enforce the foregoing waiver and (b) acknowledges
that it and other parties hereto have been induced to enter into this Agreement
by, among other things, the mutual waivers and certification in this Section.
SECTION 9.15. ADDITION OF BORROWING SUBSIDIARIES. Each wholly
owned Subsidiary of the Company which shall deliver to the Administrative Agent
a Borrowing Subsidiary Agreement executed by such Subsidiary and the Company
shall, upon such delivery and without further act, become a party hereto and a
Borrower hereunder with the same effect as if it had been an original party to
this Agreement.
SECTION 9.16. CONFIDENTIALITY. Each Lender, the Administrative
Agent and the London Agent agree to keep confidential the Information, except
that any such Lender, the Administrative Agent and the London Agent shall be
permitted to disclose Information (a) to such of its officers, directors,
employees, agents and representatives as need to know such Information; (b) to
the extent required by applicable laws and regulations or by any subpoena or
similar legal process, including with respect to the enforcement of this
Agreement, provided that such Lender, the Administrative Agent and the London
Agent shall use reasonable efforts to notify the Company of such prospective
disclosure a reasonable time prior to any such disclosure and shall take such
actions reasonably requested by the Company to assist the Company in obtaining a
protective order or confidential treatment with respect to such Information (it
being understood that failure to give such notice after having made any such
reasonable efforts shall not result in any liability hereunder to such Lender,
the Administrative Agent or the London Agent, as the case may be); (c) to the
extent requested by any bank regulatory authority; (d) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Agreement, (ii) becomes available to such Lender, the Administrative Agent
or the London Agent on a non-confidential basis from a source other than the
Company and its Affiliates or (iii) was available to such Lender, the
Administrative Agent or the London Agent on a non-confidential basis prior to
its disclosure to such Lender, the Administrative Agent or the London Agent by
the Company or its Affiliates; (e) to any Affiliate of or any actual or
prospective assignee or participant in any rights of such Lender, the
Administrative Agent or the London Agent under this Agreement, provided that
such Affiliate, assignee or participant delivers to the Administrative
57
Agent, London Agent or such Lender, as applicable, a confidentiality letter
containing substantially the undertakings set forth in this Section 9.16 and (f)
to the extent the Company shall have consented to such disclosure in writing.
SECTION 9.17. COLLATERAL. Each of the Lenders represents to
each of the other Lenders that it in good faith is not relying upon any Margin
Stock as collateral in the extension or maintenance of the credit provided for
in this Agreement.
SECTION 9.18. INTEREST RATE LIMITATION. Notwithstanding
anything herein to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, all
Charges payable to such Lender shall be limited to the Maximum Rate.
SECTION 9.19. CONVERSION OF CURRENCIES. (a) If, for the
purpose of obtaining judgment in any court, it is necessary to convert a sum
owing hereunder in one currency into another currency, each party hereto
(including any Borrowing Subsidiary) agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due
to any party hereto or any holder of the obligations owing hereunder (the
"APPLICABLE CREDITOR") shall, notwithstanding any judgment in a currency (the
"JUDGMENT CURRENCY") other than the currency in which such sum is stated to be
due hereunder (the "AGREEMENT CURRENCY"), be discharged only to the extent that,
on the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss. The obligations of the Borrowers
contained in this Section 9.19 shall survive the termination of this Agreement
and the payment of all other amounts owing hereunder.
58
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.
PERKINELMER, INC.,
by /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, individually and as
Administrative Agent,
by /s/ Xxxx Xxxxx
----------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
X.X. XXXXXX EUROPE LIMITED, individually
and as London Agent,
by /s/ X. Xxxxxx
----------------------------------------
Name: X. Xxxxxx
Title: Vice President
by /s/ X. Xxxxxx
----------------------------------------
Name: X. Xxxxxx
Title: Associate
BANK ONE, NA, (MAIN OFFICE: CHICAGO),
by /s/ Xxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Commercial Banking Officer
BARCLAYS BANK PLC,
by /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
59
CITIZENS BANK OF MASSACHUSETTS,
by /s/ Xxxxxx Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxxx Xxxxx Xxxxx
Title: Vice President
FIRSTAR BANK, N.A.,
by /s/ Xxxxxxx Xxxx
--------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
by /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
FLEET NATIONAL BANK,
by /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
MELLON BANK, N.A.,
by /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SOCIETE GENERALE,
by /s/ Xxxxxxxxx X. Xxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Director
STANDARD CHARTERED BANK,
by /s/ Raghukandau Menon
-----------------------------------------
Name: Raghukandau Menon
Title: Senior Vice President
by /s/ Xxxxxx Xx
-----------------------------------------
Name: Xxxxxx Xx
Title: Vice President
60
WACHOVIA BANK, N.A.,
by /s/ Xxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
