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EXHIBIT 4(v) EXECUTION
COPY
FACILITY B (FIVE YEAR) CREDIT AGREEMENT
dated as of October 25, 1995
between
THE XXXXXXX WORKS
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms............................................... 1
SECTION 1.02. Computation of Time Periods......................................... 12
SECTION 1.03. Accounting Terms.................................................... 12
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitment...................................................... 12
SECTION 2.02. Making the Committed Advances....................................... 13
SECTION 2.03. Fees................................................................ 16
SECTION 2.04. Continuation and Conversion......................................... 16
SECTION 2.05. Interest on Advances................................................ 17
SECTION 2.06. Additional Interest on Eurodollar Rate Advances..................... 18
SECTION 2.07. Repayment and Prepayment of Advances................................ 18
SECTION 2.08. Increased Costs..................................................... 19
SECTION 2.09. Payments and Computations........................................... 20
SECTION 2.10. Taxes............................................................... 21
SECTION 2.11. Evidence of Debt.................................................... 22
SECTION 2.12. Use of Proceeds of Advances......................................... 22
SECTION 2.13. Uncommitted Advances................................................ 22
ARTICLE III
CONDITIONS TO EFFECTIVENESS
AND LENDING
SECTION 3.01. Condition Precedent to Effectiveness of Sections 2.01 and
2.13....................................................................... 25
SECTION 3.02. Conditions Precedent to Each Advance................................ 26
ARTICLE IV
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REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower................. 27
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.......................................... 29
SECTION 5.02. Negative Covenants............................................. 32
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.............................................. 34
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action....................................... 36
SECTION 7.02. Agent's Reliance, Etc.......................................... 36
SECTION 7.03. Citibank and Affiliates........................................ 37
SECTION 7.04. Lender Credit Decision......................................... 37
SECTION 7.05. Indemnification................................................ 37
SECTION 7.06. Successor Agent................................................ 38
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc................................................ 38
SECTION 8.02. Notices, etc................................................... 39
SECTION 8.03. No Waiver; Remedies............................................ 39
SECTION 8.04. Costs and Expenses; Breakage Indemnification................... 39
SECTION 8.05. Sharing of Payments, Etc....................................... 40
SECTION 8.06. Binding Effect................................................. 41
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SECTION 8.07. Assignments and Participations.......................................................... 41
SECTION 8.08. Limitation on Assignments and Participations............................................ 43
SECTION 8.09. Withholding............................................................................. 44
SECTION 8.10. Mitigation.............................................................................. 44
SECTION 8.11. Governing Law; Waiver of Jury Trial..................................................... 45
SECTION 8.12. Execution in Counterparts............................................................... 45
SECTION 8.13. Submission to Jurisdiction.............................................................. 45
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SCHEDULE I ADDRESSES AND APPLICABLE LENDING OFFICES
EXHIBIT A FORM OF PROMISSORY NOTE (COMMITTED
ADVANCES)
EXHIBIT B-1 FORM OF RATE REQUEST
EXHIBIT B-2 FORM OF NOTICE OF BORROWING
EXHIBIT C FORM OF NOTICE OF CONVERSION OR CONTINUATION
EXHIBIT D FORM OF PROMISSORY NOTE (UNCOMMITTED
ADVANCES)
EXHIBIT E FORM OF QUOTE REQUEST
EXHIBIT F FORM OF QUOTE
EXHIBIT G FORM OF ACCEPTANCE
EXHIBIT H FORM OF OPINION
EXHIBIT I FORM OF ASSIGNMENT AND ACCEPTANCE
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FACILITY B (FIVE YEAR) CREDIT AGREEMENT
This Facility B (Five Year) Credit Agreement (as amended,
supplemented or otherwise modified from time to time, the "Agreement") is made
as of this 25th day of October, 1995 between THE XXXXXXX WORKS, a Connecticut
corporation (the "Borrow er"), the banks, financial institutions and other
institutional lenders (the "Initial Lenders") listed on the signature pages
hereof, and CITIBANK, N.A. ("Citibank"), as agent (the "Agent") for the Lenders
(as hereinafter defined).
W I T N E S S E T H
WHEREAS, the Borrower and Citibank, Shawmut Bank Connecticut,
N.A., Mellon Bank, N.A., Wachovia Bank of Georgia, N.A., Royal Bank of Canada,
New York Branch, Banque Nationale de Paris and Barclays Bank PLC are each
parties to a Credit Agreement, dated as of November 15, 1994 (each such credit
agreement, an "Existing Credit Agreement" and, collectively, the "Existing
Credit Agreements"); and such parties agree that by their execution of this
Agreement, their respective Existing Credit Agreement shall be terminated and of
no further force and effect and that in connection therewith, the banks named
above have agreed to return promptly to the Borrower, the Notes and the
Uncommitted Advance Notes (as defined in and issued under the Existing Credit
Agreements).
WHEREAS, State Street Bank and Trust desires to become a party
to this Agreement.
WHEREAS, each Existing Credit Agreement having been
terminated, the Borrower desires to enter into this Agreement as well as the
Facility A (364 Day) Credit Agreement with the Lenders being executed
simultaneously herewith.
NOW THEREFORE, in consideration of the foregoing and the
mutual promises and covenants contained herein the Borrower and the Initial
Lenders hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
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SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Acquiring Person" means any person (other than the ESOP) who
is or becomes the beneficial owner, directly or indirectly, of 10% or more of
the Borrower's outstanding common stock.
"Advance" means a Committed Advance or an Uncommitted Advance.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank with its office at 0xx Xxxxx, Xxxx 0, Xxx Xxxxx Xxxxxx,
Xxxx Xxxxxx Xxxx, Xxx Xxxx, 00000, Account No. 00000000, Attention: Xx. Xxxx
Xxxxxxxx.
"Applicable Eurodollar Margin" means with respect to any
Interest Period for each Eurodollar Rate Advance, (i) .2500% if on the date such
Eurodollar Rate Advance is made the Borrower's outstanding Long-Term
Indebtedness is rated BBB+ or higher by Standard & Poor's Ratings Group, a
division of XxXxxx-Xxxx, Inc. ("Standard & Poor's") and Baal or higher by
Xxxxx'x Investors Service, Inc. ("Moody's"), (ii) .3375% if on the date such
Eurodollar Rate Advance is made clause (i) is inapplicable and the Borrower's
outstand ing Long-Term Indebtedness is rated BBB or higher by Standard & Poor's
and Baa2 or higher by Moody's and (iii) .4375% if on the date such Eurodollar
Rate Advance is made clauses (i) and (ii) are inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated BBB- or below by Standard & Poor's
or Baa3 or below by Moody's; provided that for purposes of this definition all
references to any rating agency shall be deemed to be deleted in the event that
the Borrower's outstanding Long-Term Indebtedness is no longer rated by such
agency, and clause (iii) shall be deemed to apply if such Long-Term Indebtedness
is no longer rated by either agency.
"Applicable Facility Fee Rate" means as of any date of payment
of the fee required by Section 2.03 (i) a rate per annum equal to .1000% if on
such date the Borrower's outstanding Long-Term Indebtedness is rated A- or
higher by Standard & Poor's and A3 or higher by Moody's, (ii) a rate per annum
equal to .1875% if on such date clause (i) is inapplicable and the Borrower's
outstanding Long-Term Indebtedness is rated BBB+ or higher by Standard & Poor's
and Baal or higher by Moody's, (iii) a rate per annum equal to .2250% if on such
date clauses (i) and (ii) are inapplicable and the Borrower's outstanding
Long-Term Indebtedness is rated BBB or higher by Standard & Poor's and Baa2 or
higher by Moody's and (iv) a rate per annum equal to .2500% if on such date
clauses (i), (ii) and (iii) are inapplicable and the Borrower's outstanding
Long-Term Indebtedness is rated BBB- or below by Standard & Poor's or Baa3 or
below by Moody's; provided that all references to any rating agency shall be
deemed to be deleted in the event that the Borrower's outstanding Long-Term
Indebtedness
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is no longer rated by such agency, and clause (iv) shall be deemed to apply if
such Long-Term Indebtedness is no longer rated by either agency.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate
Advance and, in the case of an Uncommitted Advance, the office of such Lender
notified by such Lender to the Agent and the Borrower as its Applicable Lending
Office with respect to such Uncommitted Advance.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit I hereto.
"Base Rate" means a fluctuating interest rate per annum as
shall be in effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by the Reference
Bank in New York, New York, from time to time, as its base rate;
(b) 1/2 of one percent per annum above the secondary market
morning offering rate in the United States for three-month certificates
of deposit of major United States money market banks, determined by the
Reference Bank, such rate being determined by the Reference Bank on the
basis of quotations for such rates received by the Reference Bank from
three New York certificate of deposit dealers of recognized standing
selected by the Reference Bank adjusted to the nearest 1/4 of one
percent or, if there is no nearest 1/4 of one percent, to the next
higher 1/4 of one percent; or
(c) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means a Committed Advance that bears
interest as provided in Section 2.05(a).
"Borrower" has the meaning specified in the first paragraph of
this Agreement.
"Borrowing" means a Committed Borrowing or an Uncommitted
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable Business
Day relates to any Eurodollar Rate Advances, on which dealings in Dollars are
carried on in the London interbank market.
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"Capital Lease" means any lease of property, real or personal,
the obligations under which are capitalized on the consolidated balance sheet of
the Borrower and its Subsidiaries.
"Change of Control" means, with respect to the Borrower, the
occurrence of any event, act or condition which results in either (i) any Person
other than the ESOP becoming the beneficial owner, directly or indirectly, of
30% or more of the outstanding common stock of the Borrower or (ii) individuals
who constitute the Continuing Directors ceasing for any reason to constitute at
least the majority of the Board of Directors of the Borrower.
"Citibank" has the meaning specified in the first paragraph of
this Agreement.
"Commitment" means, with respect to any Lender, the amount
specified opposite such Lender's name on the signature pages hereof or, if such
Lender has entered into any Assignment and Acceptance, set forth for such Lender
in the Register maintained by the Agent pursuant to Section 8.07(d), as such
amount may be reduced pursuant to Section 2.01(b).
"Committed Advance" means an advance by a Lender to the
Borrower as part of a Committed Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance, each of which shall be a "Type" of Committed Advance.
"Committed Borrowing" means a borrowing consisting of
simultaneous Committed Advances of the same Type made by each of the Lenders
pursuant to Section 2.01.
"Committed Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit A
hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Committed Advances made by such Lender.
"Consolidated Cash Expenditures" has the meaning provided in
Section 5.01(f).
"Consolidated Cash Flow" has the meaning provided in Section
5.01(f).
"Consolidated Net Tangible Assets" means the excess over
current liabilities of all assets properly appearing on a consolidated balance
sheet of the Borrower and its Subsidiar ies after deducting goodwill,
trademarks, patents, other like intangibles and the minority interests of others
in Subsidiaries.
"Consolidated Subsidiary" has the meaning provided in Section
5.01(f).
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"Contingent Obligation" as to any Person means any obligation
of such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(i) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless the owner
of such primary obligation against loss in respect thereof; provided, however,
that the term Contingent Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contin gent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Director" means any member of the Board of
Directors of the Borrower who is not affiliated with an Acquiring Person and who
is a member of the Board of Directors of the Borrower immediately prior to the
time that the Acquiring Person became an Acquiring Person and any successor to a
Continuing Director who is not affiliated with the Acquiring Person and is
recommended to succeed a Continuing Director by a majority of Continuing
Directors who are then members of the Board of Directors of the Borrower.
"Default" means an event which would constitute an Event of
Default but for the giving of notice, the lapse of time or both.
"Dollars" and "$" mean lawful money of the United States of
America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender, or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, or any successors thereto, and the
regulations promulgated and the rulings found thereunder.
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"ERISA Controlled Group" means a group consisting of any ERISA
Person and all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control with such Person
that, together with such Person, are treated as a single employer under
regulations of the PBGC.
"ERISA Person" has the meaning set forth in Section 3(9) of
ERISA for the term "person."
"ERISA Plan" means (i) any Plan that (x) is not a
Multiemployer Plan and (y) has Unfunded Benefit Liabilities in excess of
$20,000,000 and (ii) any Plan that is a Multiemployer Plan.
"ESOP" means The Xxxxxxx Works 401(k) Savings Plan or any
successor plan.
"Eurocurrency Liabilities" has the meaning provided in
Regulation D of the Federal Reserve Board, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant to
which it became a Lender (or, if no such office of such Lender is specified, its
Domestic Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Committed Borrowing, an
interest rate per annum equal to the offered rate for deposits in Dollars as
quoted by the British Banker's Association on Telerate page 3750 at 11:00 A.M.
(London time) two Business Days before the first day of such Interest Period in
an amount substantially equal to the Reference Bank's Eurodollar Rate Advance
comprising part of such Committed Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period.
"Eurodollar Rate Advance" means a Committed Advance that bears
interest as provided in Section 2.05(b).
"Eurodollar Rate Reserve Percentage" for any Lender for any
Eurodollar Rate Advances owing to such Lender means the reserve percentage
applicable two Business Days before the first day of the applicable Interest
Period under regulations issued from time to time by the Federal Reserve Board
for determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to the applicable Interest Period.
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"Events of Default" has the meaning specified in Section 6.01.
"Federal Bankruptcy Code" means Title 11 of the United States
Code entitled "Bankruptcy", as amended from time to time, or any successor
thereto.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve Board arranged by Federal fund brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Reference Bank from three Federal funds
brokers of recognized standing selected by the Reference Bank.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System as constituted from time to time.
"Fixed Rate" has the meaning set forth in Section
2.13(c)(ii)(C).
"Fixed Rate Advance" means an Advance which bears interest as
provided in Section 2.05(d).
"Fixed Rate Auction" means a solicitation of Quotes setting
forth Fixed Rates pursuant to Section 2.13.
"Floating Rate" means, for any Interest Period for a Floating
Rate Advance, an interest rate per annum equal to the Base Rate in effect from
time to time minus the Floating Rate Margin for such Advance and Interest
Period.
"Floating Rate Advance" means an Advance which bears interest
as provided in Section 2.05(c).
"Floating Rate Auction" means a solicitation of Quotes setting
forth Floating Rate Margins based on the Base Rate pursuant to Section 2.13.
"Floating Rate Margin" has the meaning provided in Section
2.13(c)(ii)(B).
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"Indebtedness" of any Person means, without duplication, (i)
all indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services
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(other than trade payables incurred in the ordinary course of business of such
Person), (ii) all indebtedness of such Person evidenced by a note, bond,
debenture or similar instrument, (iii) the principal component of all Capital
Lease obligations of such Person, (iv) the face amount of all letters of credit
issued for the account of such Person and, without duplication, all unreimbursed
amounts drawn thereunder, (v) all indebtedness of any other Person secured by
any Lien on any property owned by such Person, whether or not such indebtedness
has been assumed, (vi) all Contingent Obligations of such Person, and (vii) all
payment obligations of such Person under any interest rate protection agreement
(including, without limitation, any interest rate swaps, caps, floors, collars
and similar agreements) and currency swaps and similar agreements.
"Initial Lenders" has the meaning specified in the first
paragraph of this Agreement.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Committed Borrowing, each Floating Rate Advance
comprising part of the same Uncommitted Borrowing and each Fixed Rate Advance
comprising part of the same Uncommitted Borrowing, the period commencing on the
date of such Advance or the date of the continuation of such Eurodollar Rate
Advance or the date of the conversion of any Base Rate Advance into such
Eurodollar Rate Advance and ending on the last day of the period se lected by
the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be (a) in the case of a Eurodollar Rate Advance, one, two,
three or six months, (b) in the case of a Fixed Rate Advance, from 14 to 180
days, and (c) in the case of a Floating Rate Advance, from 30 to 180 days, in
each case as the Borrower may select in the Notice of Borrowing, Quote Request
or Notice of Conversion or Continuation for such Advance, as the case may be;
provided that:
(i) the Borrower may not select any Interest Period which ends
after the Termination Date;
(ii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; provided that if, in the case of any Interest Period with
respect to any Eurodollar Rate Advance, such extension would cause the
last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the
next preceding Business Day;
(iii) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (iv) below, end on the last Business
Day of a calendar month;
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(iv) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
(v) if, upon the expiration of any Interest Period with
respect to a Committed Borrowing consisting of Eurodollar Rate
Advances, the Borrower has failed to elect a new Interest Period to be
applicable to such Advances as provided above, the Borrower shall be
deemed to have elected to convert such Advances into a Base Rate
Advance effective as of the expiration date of such current Interest
Period; and
(vi) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Committed
Borrowing or for Fixed Rate Advances or Floating Rate Advances
comprising part of the same Uncommitted Borrowing shall be of the same
duration.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, or any successor thereto.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07.
"Lien" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), or
preferential payment arrangement, priority or other security agreement of any
kind or nature whatsoever, including, without limitation, any conditional sale
or other title retention agreement, any financing lease having substantially the
same effect as any of the foregoing and the filing of any financing statement or
similar instrument under the Uniform Commercial Code or comparable law of any
jurisdiction, domestic or foreign.
"Long-Term Indebtedness" means the long-term Senior Unsecured
Indebtedness of the Borrower.
"Margin Stock" has the meaning ascribed to such term in
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Material Adverse Effect" means a material adverse effect on
the business, financial condition or results of operations of the Borrower and
its Consolidated Subsidiaries taken as a whole.
"Multiemployer Plan" means a Plan which is a "multiemployer
plan" as defined in Section 4001(a)(3) of ERISA.
"Note" means a Committed Note or an Uncommitted Note.
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"Notice of Borrowing" has the meaning provided in Section
2.02(b).
"Notice of Conversion or Continuation" has the meaning
provided in Section 2.04.
"Other Taxes" has the meaning provided in Section 2.10.
"PBGC" means the Pension Benefit Guaranty Corporation
established under ERISA, or any successor thereto.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity, or a
government or any political subdivision or agency thereof.
"Plan" means any employee benefit plan covered by Title IV of
ERISA, the funding requirements of which:
(i) were the responsibility of the Borrower or a member of its
ERISA Controlled Group at any time within the five years immediately
preceding the date hereof,
(ii) are currently the responsibility of the Borrower or a
member of its ERISA Controlled Group, or
(iii) hereafter become the responsibility of the Borrower or a
member of its ERISA Controlled Group,
including any such plans as may have been, or may hereafter be, terminated for
whatever reason.
"Principal Property" means all real property and tangible
personal property constituting a manufacturing plant owned by the Borrower or
any of its Subsidiaries, exclusive of (i) motor vehicles, mobile materials
handling equipment and other rolling stock, (ii) office furnishings and
equipment, information and electronic data processing equipment, (iii) any
property financed through obligations issued by a state, territory or possession
of the United States, or any political subdivision or instrumentality of the
foregoing, on which the interest cannot, in the opinion of tax counsel of
recognized standing or in accordance with a ruling issued by the Internal
Revenue Service, be included in gross income of the holder under Section
103(a)(1) of the Internal Revenue Code (or any successor to such provision) as
in effect at the time of the issuance of such obligations, (iv) any real
property held for development or sale, or (v) any property and equipment
included therein without deduction of any depreciation reserves which is less
than 10% of Consolidated Net Tangible Assets or
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which the Board of Directors of the Borrower determines is not material to the
operation of the business of the Borrower and its Subsidiaries taken as a whole.
"Principal Subsidiary" means any Subsidiary of the Borrower
which has net sales which represent 15% or more of the consolidated net sales of
the Borrower and its Consolidated Subsidiaries taken as a whole.
"Pro Rata Share" means, with respect to any Lender, the
percentage corresponding to the fraction the numerator of which shall be the
amount of the Commitment of such Lender and the denominator of which shall be
the aggregate amount of the Commitments of all Lenders.
"Quote" means an offer by any Lender to make an advance under
Section 2.13.
"Quote Request" has the meaning set forth in Section 2.13(b).
"Rate Notification" has the meaning set forth in Section
2.02(a).
"Rate Request" has the meaning set forth in Section 2.02(a).
"Reference Bank" means Citibank or, if Citibank is no longer
the Agent, such Person (which shall be a Lender or the Agent) as shall be
designated by the Borrower with the consent of the Required Lenders, which
consent shall not be unreasonably withheld.
"Register" has the meaning specified in Section 8.07(d).
"Reportable Event" has the meaning set forth in Section
4043(b) of ERISA (other than a Reportable Event as to which the provision of 30
days notice to the PBGC is waived under applicable regulations).
"Required Lenders" means at any time Lenders representing in
the aggregate at least 51% of the Commitments or, if the Commitments shall have
terminated, Lenders representing in the aggregate at least 51% of the sum of the
Advances owing to Lenders hereunder.
"Senior Unsecured Indebtedness" means Indebtedness that is not
subordinated to any other Indebtedness and is not secured or supported by a
guarantee, letter of credit or other form of credit enhancement.
"Subsidiary" of any Person means (i) any corporation 50% or
more of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock
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of any class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries and (ii) any
partnership, association, joint venture, limited liability company or other
entity in which such Person, directly or indirectly through Subsidiaries, is
either a general partner or has a 50% or more equity interest at the time.
"Taxes" has the meaning provided in Section 2.10.
"Termination Date" means the earlier of the date that is five
years after the date hereof or the date of termination in whole of the
Commitments pursuant to Section 2.01(b) or 6.01.
"Termination Event" means (i) a Reportable Event, or (ii) the
initiation of any action by the Borrower, any member of the Borrower's ERISA
Controlled Group or any ERISA Plan fiduciary to terminate an ERISA Plan or the
treatment of an amendment to an ERISA Plan as a termination under ERISA, or
(iii) the institution of proceedings by the PBGC under Section 4042 of ERISA to
terminate an ERISA Plan or to appoint a trustee to administer any ERISA Plan.
"Type" has the meaning provided in the definitions of
Committed Advance and Uncommitted Advance.
"Uncommitted Advance" means an advance by a Lender to the
Borrower as part of an Uncommitted Borrowing resulting from the auction bidding
procedure described in Section 2.13 and refers to a Floating Rate Advance or a
Fixed Rate Advance, each of which shall be a "Type" of Uncommitted Advance.
"Uncommitted Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of Exhibit D
hereto, evidencing the indebtedness of the Borrower to such Lender resulting
from the Uncommitted Advances made by such Lender.
"Uncommitted Borrowing" means a borrowing consisting of
simultaneous Uncommitted Advances from each of the Lenders whose offer to make
one or more Uncommitted Advances as part of such borrowing has been accepted
under the auction bidding procedure described in Section 2.13.
"Unfunded Benefit Liabilities" means with respect to any Plan
at any time, the amount (if any) by which (i) the present value of all benefit
liabilities under such Plan as defined in Section 4001(a)(16) of ERISA, exceeds
(ii) the fair market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such
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Plan (on the basis of assumptions prescribed by the PBGC for the purpose of
Section 4044 of ERISA).
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Commitment. (a) The Committed Advances. Each
Lender agrees, on the terms and conditions hereinafter set forth, to make
Committed Advances to the Borrower from time to time on any Business Day during
the period from the date hereof until the Termination Date in an aggregate
amount not to exceed at any time outstanding of (i) such Lender's Commitment
minus (ii) such Lender's Pro Rata Share of the aggregate principal amount of all
Uncommitted Advances then outstanding. Within the limits of each Lender's
Commitment, the Borrower may borrow, repay, prepay (as provided in Section 2.07)
and reborrow such amount or any portion thereof. Each Committed Borrowing shall
be in an aggregate amount of $10,000,000 or an integral multiple of $1,000,000
in excess thereof or, if less, the aggregate amount of the unused Commitments
and shall consist of Committed Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Notwithstanding
the foregoing restriction with respect to the minimum amount of each Committed
Borrowing, the Borrower may borrow Committed Borrowings in an aggregate amount
equal to the amount by which the aggregate amount of a proposed Uncommitted
Borrowing requested by the Borrower exceeds the aggregate amount of Uncommitted
Advances offered to be made by the Lenders and accepted by the Borrower in
respect of such Uncommitted Borrowing, if such Uncommitted Borrowing is made on
the same date as such Committed Borrowing.
(b) Termination and Reduction. The Borrower shall have the
right, upon at least two Business Days' notice to the Agent, to terminate in
whole or reduce each Lender's Pro Rata Share of the unused Commitments, provided
that the aggregate amount of the Commitments of the Lenders shall not be reduced
to an amount that is less than the aggregate principal amount of the Uncommitted
Advances then outstanding. Each partial reduction of the Commitments shall be in
the aggregate amount of at least $10,000,000 or a larger whole multiple of
$1,000,000.
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SECTION 2.02. Making the Committed Advances. (a) Determination
of Eurodollar Rate. The Borrower may request the Reference Bank, no earlier than
9:00 A.M. (New York City time) and no later than 11:00 A.M. (New York City time)
on the third Business Day before a proposed Eurodollar Rate Advance, to notify
the Borrower of the Eurodollar Rate that would be applicable to a Committed
Advance in the principal amount and with the Interest Period as described by the
Borrower in such request, which request shall be substantially in the form of
Exhibit B-1 (a "Rate Request"). Upon such request, the Reference Bank shall
furnish such interest rate to the Borrower no later than noon (New York City
time) on the second Business Day before the proposed Eurodollar Rate Advance by
delivering to the Borrower a copy of the related Rate Request setting forth such
rate and executed by an autho rized officer of the Reference Bank in the space
provided therefor (a "Rate Notification"). The Borrower shall be entitled to
rely on any such notification and such rate shall be conclusive and binding on
the Lenders absent manifest error.
(b) Notice of Borrowing. Each Committed Borrowing shall be
made on notice by the Borrower to the Agent, which shall give to each Lender
prompt notice thereof by telecopier or telex, given not later than 11:00 A.M.
(New York City time) on the date of the proposed Committed Borrowing, if such
Committed Borrowing is to be comprised of Base Rate Advances and no earlier than
9:00 A.M. (New York City time) and no later than 4:00 P.M. (New York City time)
on the third Business Day prior to such date if such Committed Borrowing is to
be comprised of Eurodollar Rate Advances. Each such notice of a Committed
Borrowing (a "Notice of Borrowing") shall be by telecopier, telex or cable, or
by telephone confirmed immediately in writing, in substantially the form of
Exhibit B-2 hereto, specifying therein the requested (i) date of such Committed
Borrowing, (ii) Type of Advances comprising such Committed Borrowing, (iii)
aggregate amount of such Committed Borrowing and (iv) in the case of a Committed
Borrowing consisting of Eurodollar Rate Advances, the initial Interest Period
for each such Committed Advance. Each Lender shall, before 1:00 P.M. (New York
City time) on the date of such Committed Borrowing, make available for the
account of its Applicable Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's Pro Rata Share of such Committed Borrowing.
Promptly after the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such funds
available to the Borrower by depositing the same in immediately available funds
into such account as the Borrower shall have specified in the related Notice of
Borrowing.
(c) Illegality, Etc. Anything in subsection (a) or (b) above
to the contrary notwithstanding,
(i) if any Lender shall, at least one Business Day before the
date of any requested Advance or the date of any conversion to or
continuation of a Eurodollar Rate Advance, notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or that any central bank or
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other governmental authority asserts that it is unlawful, for such
Lender or its Eurodollar Lending Office to perform its obligations
hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, the Agent shall forthwith given
notice thereof to the other Lenders and the Borrower, whereupon (A)
such Lender shall have no obligation to make Eurodollar Rate Advances,
or to convert Advances into Eurodollar Rate Advances, until such Lender
notifies the Borrower and the Agent that the circumstances causing such
suspension no longer exist and (B) the Borrower shall be deemed to have
converted all Eurodollar Rate Advances of such Lender then outstanding
into Base Rate Advances in accordance with Section 2.04 on and as of
the date of the Agent's receipt of such notice, unless and to the
extent such notice directs that one or more Eurodollar Rate Advances
shall be so converted on the last day of the applicable Interest
Period, provided that (w) before giving any such notice, such Lender
agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would
avoid the need for such suspension and conversion and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender, (x) any request by the Borrower for Eurodollar Rate
Advances during a time when a Lender's obligation to make, or convert
Advances into, Eurodollar Rate Advances shall be suspended hereunder
shall be deemed to be a request for, or for conversion into, Base Rate
Advances from such Lender, (y) all Advances that would otherwise be
made by such Lender as Eurodollar Rate Advances during any such
suspension shall instead be made as Base Rate Advances, and (z) in the
event any Lender shall notify the Agent and the Borrower of the
occurrence of the circumstances causing such suspension under this
Section 2.02(c), all payments and prepayments of principal that would
otherwise have been applied to repay the Eurodollar Rate Advances that
would have been made by such Lender or the converted Eurodollar Rate
Advances shall instead be applied to repay the Base Rate Advances made
by such Lender in lieu of, or resulting from the conversion of, such
Eurodollar Rate Advances;
(ii) if the Reference Bank cannot furnish the Eurodollar Rate
for any Committed Borrowing consisting of Eurodollar Rate Advances
because of conditions existing in the London interbank market, the
right of the Borrower to select Eurodollar Rate Advances shall be
suspended until the Reference Bank shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer exist;
and
(iii) if the Required Lenders shall, at least one Business Day
before the date of any requested Eurodollar Rate Advance, notify the
Agent that the Eurodollar Rate for any Interest Period will not
adequately reflect the cost to the Required Lenders of making, funding
or maintaining their respective Eurodollar Rate Advances for such
Interest Period, the Agent shall forthwith so notify the Borrower and
the Lenders, whereupon the Lenders shall have no obligation to make, or
convert Committed
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Advances into, Eurodollar Rate Advances until the Agent shall notify
the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(d) Effect of Failure to Fulfill Conditions. Each Notice of
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Committed Borrowing that the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Committed Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding anticipated profits), cost or
expense reasonably incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Committed Advance to
be made by such Lender as part of such Committed Borrowing when such Advance, as
a result of such failure, is not made on such date, such indemnity to be paid
promptly upon receipt by the Borrower of a certificate of such Lender setting
forth the calculation of the amount of the indemnity claimed by such Lender.
(e) Funds Available. Unless the Agent shall have received
notice from a Lender prior to the date of any Committed Borrowing that such
Lender will not make available to the Agent such Lender's ratable portion of
such Committed Borrowing, the Agent may assume that such Lender has made such
portion available to the Agent on the date of such Committed Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Agent, such Lender and the Borrower
severally agree to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at (i) in the case of the Borrower, the interest rate applicable at the
time to Committed Advances comprising such Committed Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Committed Advance as part of such Committed Borrowing for purposes of
this Agreement.
(f) Failure to Make Advances. The failure of any Lender to
make the Committed Advance to be made by it as part of any Committed Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make
its Committed Advance on the date of such Committed Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Committed
Advance to be made by such other Lender on the date of any Committed Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's
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Commitment from the date hereof in the case of each Initial Lender and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date at
the Applicable Facility Fee Rate, payable quarterly in arrears on the last day
of each March, June, September and December during the term hereof and on the
Termination Date. All computations of the facility fee shall be based on a year
of 365 or 366 days, as the case may be.
(b) Agent's Fees. The Borrower shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Borrower
and the Agent.
SECTION 2.04. Continuation and Conversion. (a) General.
Subject to the other provisions hereof, the Borrower shall have the option (i)
to convert all or any part of an outstanding Committed Borrowing consisting of
Base Rate Advances to a Committed Borrowing consisting of Eurodollar Rate
Advances, (ii) to convert all or any part of an outstanding Committed Borrowing
consisting of Eurodollar Rate Advances to a Committed Borrowing consisting of
Base Rate Advances, or (iii) to continue all or any part of an outstanding
Committed Borrowing consisting of Eurodollar Rate Advances as a Committed
Borrowing consisting of Eurodollar Rate Advances for an additional Interest
Period; provided that no Committed Borrowing consisting of Eurodollar Rate
Advances shall be so converted other than as contemplated by Section 2.02(c) or
continued, until the expiration of the Interest Period applicable thereto.
(b) Notice of Conversion or Continuation. In order to elect to
convert or continue a Committed Borrowing hereunder, the Borrower shall deliver
an irrevocable notice thereof (a "Notice of Conversion or Continuation") to the
Agent by telecopier, telex or cable or by telephone confirmed immediately in
writing, no later than (i) 11:00 A.M., (New York City time) on the proposed
conversion date in the case of a conversion to Base Rate Advances and (ii) no
earlier than 9:00 A.M. (New York City time) and no later than 4:00 P.M. (New
York City time) on the third Business Day in advance of the proposed conversion
or contin uation date in the case of a conversion to, or a continuation of,
Eurodollar Rate Advances, substantially in the form of Exhibit C hereto. A
Notice of Conversion or Continuation shall specify (w) the requested conversion
or continuation date (which shall be a Business Day), (x) the amount and Type of
the Advances to be converted or continued, (y) whether a conversion or
continuation is requested, and (z) in the case of a conversion to, or a
continuation of, Eurodollar Rate Advances, the requested Interest Period. The
relevant Eurodollar Rate for such Interest Period in the case of a conversion
to, or a continuation of, Eurodollar Rate Advances shall be determined in the
manner provided in Section 2.02(a) as if such conversion or continuation is
instead new Eurodollar Rate Advances in such amount, on such date and for such
Interest Period. If the Borrower fails to give a Notice of Conversion or
Continuation with respect to an outstanding Committed Borrowing consisting of
Eurodollar Rate Advances as provided in clause (ii) above, the Borrower shall be
deemed to have converted such
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Eurodollar Rate Advances into Base Rate Advances in accordance with this Section
2.04 if such Advances are outstanding after the last day of the Interest Period
with respect thereto.
SECTION 2.05. Interest on Advances. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(a) Base Rate Advances. If such Advance is a Base Rate
Advance, a rate per annum equal to the Base Rate in effect from time to
time, payable in arrears quarterly on the last Business Day of each
fiscal quarter during the period such Base Rate Advance remains
outstanding and on the date such Base Rate Advance shall be paid in
full;
(b) Eurodollar Rate Advances. If such Advance is a Eurodollar
Rate Advance, a rate per annum equal at all times during the Interest
Period for such Advance to the sum of the Eurodollar Rate for such
Interest Period plus the Applicable Eurodollar Margin for such Advance,
payable in arrears on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day
which occurs during such Interest Period every three months from the
first day of such Interest Period;
(c) Floating Rate Advances. If such Advance is a Floating Rate
Advance, a rate per annum equal at all times during the Interest Period
for such Advance to the Floating Rate for such Interest Period quoted
by such Lender in accordance with Section 2.13, payable in arrears on
the last Business Day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day which
occurs during such Interest Period every three months from the first
day of such Interest Period;
(d) Fixed Rate Advances. If such Advance is a Fixed Rate
Advance, a rate per annum equal at all times during the Interest Period
for such Advance to the Fixed Rate for such Interest Period quoted by
such Lender in accordance with Section 2.13, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day which occurs during
such Interest Period every three months from the first day of such
Interest Period; and
(e) Default Rate. In the event that, and for so long as, any
Event of Default shall have occurred and be continuing, the outstanding
principal amount of all Advances and, to the extent permitted by law,
overdue interest in respect of all Advances, shall bear interest at a
rate per annum equal to the sum of two percent (2%) plus the interest
rate otherwise applicable hereunder to such principal amount in effect
from time to time. In the event that, and for so long as, any Default
under Section
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6.01(a) shall have occurred and be continuing, the outstanding
principal amount of the Advance with respect to which such Default has
occurred and is continuing shall bear interest at a rate per annum
equal to the sum of two percent (2%) plus the interest rate otherwise
applicable hereunder to such principal amount in effect from time to
time.
SECTION 2.06. Additional Interest on Eurodollar Rate Advances.
The Borrower shall pay to each Lender, during each period as such Lender shall
be required under regulations of the Federal Reserve Board to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities, additional interest on the unpaid principal amount of each
Eurodollar Rate Advance of such Lender outstanding during such period, from the
later of the date such reserves are required and the making of such Advance
until the earlier of the date such reserves are no longer required and such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (i) the Eurodollar Rate for the
Interest Period applicable to such Advance from (ii) the rates obtained by
dividing such Eurodollar Rate by a percentage equal to 100% minus the average
Eurodollar Rate Reserve Percentage of such Lender during such period, payable on
each date on which interest is payable on such Advance. Such Lender shall
determine the amount of such additional interest, if any, and promptly notify
the Borrower through the Agent of the amount thereof.
SECTION 2.07. Repayment and Prepayment of Advances. (a) The
Borrower shall repay to the Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the Committed Advances then
outstanding and shall repay to the Agent for the account of the Lenders to which
Uncommitted Advances comprising part of the same Borrowing are owing the
aggregate principal amount of such Uncommitted Advances then outstanding on the
last day of the Interest Period with respect thereto. The Borrower shall have no
right to prepay any principal amount of any Advances other than as provided in
this Section 2.07. The Borrower may, upon at least two Business Days' notice to
the Agent stating the proposed date and principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding principal
amount of the Committed Advances comprising part of the same Committed Borrowing
in whole or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that each partial
prepayment shall be in the aggregate principal amount of at least $10,000,000 or
a larger whole multiple of $1,000,000 and, in the case of a payment or
prepayment of a Eurodollar Rate Advance other than on the last day of the
Interest Period for such Advance as provided herein, shall have the consequences
set forth in Section 8.04(b).
(b) The Borrower shall notify the Agent immediately upon
becoming aware of any Change of Control. Upon receipt of such notice and for a
period of 90 days thereafter, the Required Lenders shall be entitled, by written
notice to the Borrower received within such period, to terminate the Commitments
in whole and require the Borrower to prepay all outstanding Advances within 5
Business Days of its receipt of such notice, together with any
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accrued and unpaid interest thereon to the date of such prepayment and any other
amounts due hereunder. Notwithstanding any other provision contained herein, a
Change of Control shall not, in and of itself, constitute a Default hereunder.
SECTION 2.08. Increased Costs. (a) Changes in Law, Etc. If,
due to (i) the introduction of or any change in or in the interpretation of any
law or regulation on or after the date of this Agreement, or (ii) the compliance
with any guideline or request not applicable on the date of this Agreement from
any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender of agreeing
to make or making, funding or maintaining Eurodollar Rate Advances, then the
Borrower shall from time to time, promptly upon demand by such Lender (with a
copy of such demand to the Agent) accompanied by the certificate described in
the next sentence, pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrower
and the Agent by such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(b) Capital Adequacy. If, due to (i) the introduction of or
any change in or in the interpretation of any law or regulation on or after the
date of this Agreement, or (ii) the compliance with any guideline or request not
applicable on the date of this Agreement from any central bank or other
governmental authority (whether or not having the force of law), any Lender
determines that the amount of capital required or expected to be maintained by
such Lender or any corporation controlling such Lender has been or would be
affected and that the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and other commitments of
this type, then, upon demand by such Lender received by the Borrower within such
time from the relevant change or introduction described above as is reasonably
required in order to determine the effect thereof (with a copy of such demand to
the Agent) accompanied by a certificate of such Lender as to the amounts
demanded, the Borrower shall pay to the Agent for the account of such Lender,
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation, as the case may be, to the extent
that such Lender reasonably determines such increase in capital to be allocable
to the existence of such Lender's commit ment to lend hereunder, such amounts to
be due and payable within two days of such Lender's invoice therefor. A
certificate as to such amounts submitted to the Borrower and the Agent by such
Lender shall be conclusive and binding for all purposes, absent manifest error.
SECTION 2.09. Payments and Computations. (a) Manner of
Payment. The Borrower shall make each payment hereunder and under the Notes not
later than 11:00 A.M. (New York City time) on the day when due in Dollars to the
Agent at the Agent's Account in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.02(d), 2.06, 2.08, 2.10, 2.13(f) or 8.04(b)) to the
Lenders for the
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account of their respective Applicable Lending Offices, and like funds relating
to the payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) Setoff. The Borrower hereby authorizes each Lender, if and
to the extent payment owed to such Lender is not made when due hereunder or
under the Note or Notes held by such Lender, to charge from time to time against
any or all of the Borrower's accounts with such Lender any amount so due.
(c) Interest. All computations of interest based on the Base
Rate shall be made by the Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
or the Federal Funds Rate or with respect to Uncommitted Advances and all
computations of interest pursuant to Section 2.06 shall be made by the Agent on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest is payable. Each determination by the Reference Bank of an
interest rate for any Committed Advance hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Business Days. Whenever any payment hereunder or under the
Notes shall be stated to be due on a day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of payment of interest or
facility fee, as the case may be; provided that if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances to be made in
the next following calendar month, such payment shall be made on the next
preceding Business Day.
(e) Assumption of Payment. Unless the Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such payment in full,
the Agent may assume that the Borrower has made such payment in full to the
Agent on such date and the Agent may, in reliance upon such assumption, cause to
be distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall not have so made
such payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for
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each day from the date such amount is distributed to such Lender until the date
such Lender repays such amount to the Agent, at the Federal Funds Rate.
(f) Rate Information. The Reference Bank shall notify the
Borrower and the Agent of the Base Rate in effect on the first Business Day on
which a Base Rate or Floating Rate Advance is outstanding and each day on which
a change in the Base Rate occurs, each in sufficient detail to enable the
Borrower to calculate interest payments hereunder with respect to Base Rate
Advances and Floating Rate Advances, and shall provide such information to any
Lender promptly upon its request. The Borrower will provide to each Lender (i)
(unless the Lender is the Reference Bank) promptly upon receipt thereof copies
of the information received by the Borrower pursuant to the immediately
preceding sentence or any Rate Notification received pursuant to Section
2.02(a), (ii) promptly upon the making of any interest payment with respect to a
Base Rate Advance or a Floating Rate Advance hereunder a schedule based on such
information setting forth the Base Rate for each day in the period in which such
Advance was outstanding, and (iii) promptly upon obtaining knowledge thereof,
notice of any change in the rating assigned by Standard & Poor's or Xxxxx'x to
the Borrower's Long-Term Indebtedness and the date of such change, provided that
the Borrow er's failure to provide any of the foregoing information shall be
deemed not to be a Default or Event of Default hereunder.
SECTION 2.10. Taxes. (a) General. Any and all payments by the
Borrower hereunder or under the Notes shall be made in accordance with Section
2.09, free and clear of and without deduction for any and all taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, not in effect or not imposed on the date of this Agreement; excluding,
in the case of each Lender and the Agent, taxes imposed on its income, and
franchise taxes imposed on it by the jurisdiction under the laws of which such
Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of such Lender's
Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(b) Other Taxes. In addition, the Borrower agrees to pay any
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement not in effect or not imposed on the date of this Agreement or the
Notes (hereinafter referred to as "Other Taxes") upon notice from the Lender.
(c) Tax Indemnity. The Borrower will indemnify each Lender and
the Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.10) paid by such Lender or the Agent (as the case
may be) and any liability (including penalties, interest
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and expenses) arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case
may be) makes written demand therefor.
(d) Receipt. Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof.
(e) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.10 shall survive the payment in full of
principal and interest hereunder.
SECTION 2.11. Evidence of Debt. The Committed Advances owing
to each Lender shall be evidenced by the Committed Note to the order of such
Lender and the Uncom mitted Advances owing to each Lender shall be evidenced by
the Uncommitted Note to the order of such Lender, in each case delivered to such
Lender pursuant to Article III. The entries made in each Committed Note and each
Uncommitted Note shall be conclusive and binding for all purposes absent
manifest error.
SECTION 2.12. Use of Proceeds of Advances. The Borrower will
use the proceeds of the Advances for general corporate purposes, including,
without limitation, for the acquisition of Margin Stock.
SECTION 2.13. Uncommitted Advances. (a) The Uncommitted
Advances Option. In addition to Committed Advances pursuant to Section 2.01, the
Borrower may, as set forth in this Section 2.13, request the Lenders to make
offers to make Uncommitted Advances to the Borrower. Each Lender may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in this Section
2.13; provided that, following the making of each Uncommitted Borrowing, the
aggregate amount of the Advances then outstanding shall not exceed the aggregate
amount of the Commitments of the Lenders (computed without regard to any
Uncommitted Advances then outstanding). The Uncommitted Advances may be Floating
Rate Advances or Fixed Rate Advances.
(b) Quote Request. When the Borrower wishes to request offers
to make Uncommitted Advances as part of an Uncommitted Borrowing, it shall
transmit to the Agent, by telecopier or telex, a quote request substantially in
the form of Exhibit E hereto (a "Quote Request") so as to be received (x) no
earlier than 9:00 A.M. (New York City time) and no later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of Borrowing
proposed therein, in the case of a Fixed Rate Auction, or (y) no later than
11:00 A.M. (New York City time) on the Business Day immediately preceding the
proposed date of Borrowing proposed therein, in the case of a Floating Rate
Auction, specifying:
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(i) the proposed date of Borrowing, which shall be a Business
Day;
(ii) the proposed aggregate amount of such Borrowing, which
shall be $10,000,000 or a larger whole multiple of $1,000,000; and
(iii) the duration of the proposed Interest Period applicable
thereto subject to the provisions of the definition of Interest Period.
The Agent shall in turn promptly notify each Lender of each request for an
Uncommitted Borrowing received by it from the Borrower by sending such Lender a
copy of the related Quote Request. The Borrower may request offers to make
Uncommitted Advances for more than one Interest Period in a single Quote
Request. No Quote Request shall be given within five Business Days of any other
Quote Request.
(c) Submission and Contents of Quotes. (i) Each Lender may but
shall not be required to submit a Quote containing an offer or offers to make an
Uncommitted Advance as part of a proposed Uncommitted Borrowing in response to
any Quote Request. Each Quote must comply with the requirements of this Section
2.13(c) and must be submitted to the Agent (which shall give prompt notice
thereof to the Borrower) in writing (including by telecopy) no later than (A)
11:00 A.M. (New York City time) on the third Business Day prior to the proposed
date of borrowing in the case of a Fixed Rate Auction or (B) 11:00 A.M. (New
York City time) on the Business Day immediately preceding the proposed date of
borrowing, in the case of a Floating Rate Auction; provided that if the Agent in
its capacity as a Lender shall, in its sole discretion, elect to make any such
offer, it shall notify the Borrower of such offer at least 30 minutes before the
time and on the date on which notice of such election is to be given to the
Agent by the other Lenders. If any Lender shall elect not to make such an offer,
such Lender shall so notify the Agent, before 11:00 A.M. (New York City time) on
the date on which notice of such election is to be given to the Agent by the
other Lenders, and such Lender shall not be obligated to, and shall not, make
any Uncommitted Advance as part of such Uncommitted Borrowing; provided that the
failure by any Lender to give such notice shall not cause such Lender to be
obligated to make any Uncommitted Advance as part of such proposed Uncommitted
Borrowing. Any Quote so made shall be irrevocable except with the written
consent of the Borrower.
(ii) A Quote may set forth each separate offer by a Lender
with respect to each Interest Period specified in the related Quote Request.
Each Quote shall be in substantially the form of Exhibit F hereto, and shall in
any case specify:
(A) the principal amount of the Uncommitted Advance for each
such offer, which principal amount (1) may be greater than or less than
the Commitment of such Lender, (2) must be a whole multiple of
$1,000,000, (3) may not exceed (but may be less than) the proposed
principal amount of the proposed Uncommitted Borrowing set
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forth in the related Quote Request, and (4) may be subject to an
aggregate limitation as to the principal amount of Uncommitted Advances
for which offers being made by such Lender may be accepted;
(B) in the case of a Floating Rate Auction, the margin below
the Base Rate (the "Floating Rate Margin") offered for each such
Uncommitted Advance expressed as a percentage (specified to the nearest
1/1,000th of 1%) to be subtracted from such Base Rate; and
(C) in the case of a Fixed Rate Auction, the rate of interest
per annum (specified to the nearest 1/1,000th of 1%) (the "Fixed Rate")
offered for each such Uncommitted Advance.
(iii) Any Quote shall be disregarded if it:
(A) is not substantially in conformity with the format
described in the relevant Quote Request or does not specify all of the
information required by Section 2.13(c)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the appli cable Quote Request; or
(D) is received by the Agent after the time set forth in
Section 2.13(c)(i).
(d) Acceptance and Notice by Borrower. Not later than (i) 1:00
P.M. (New York City time) on the third Business Day prior to the proposed date
of borrowing, in the case of a Fixed Rate Auction or (ii) 1:00 P.M. (New York
City time) on the Business Day immediately preceding the proposed date of
borrowing, in the case of a Floating Rate Auction, the Borrower shall notify the
Agent (which shall give prompt notice thereof to the Lenders) of its acceptance
or nonacceptance of the offers so notified to it pursuant to Section 2.13(c)
substantially in the form of Exhibit G hereto; provided that if the Borrower
shall fail to so notify the Agent by the times set forth above, the Borrower
shall be deemed to have notified the Agent of its nonacceptance of each such
offer. In the case of acceptance, each such notice shall specify the aggregate
principal amount of offers that are accepted. The Borrower may accept any such
offer in whole or in part; provided that:
(i) the aggregate principal amount of each Uncommitted
Borrowing may not exceed the applicable amount set forth in the related Quote
Request;
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(ii) the principal amount of each Uncommitted Borrowing must
be $10,000,000 or a larger whole multiple of $1,000,000;
(iii) acceptance of offers from the Lenders may only be made
on the basis of ascending Floating Rate Margins or Fixed Rates, as the
case may be; and
(iv) the Borrower may not accept any offer that is described
in Section 2.13(c)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(e) Allocation. If offers are made by more than one Lender
with the same Floating Rate Margins or Fixed Rates, as the case may be, for a
greater aggregate principal amount than the amount in respect of which such
offers are accepted, the principal amount of Uncommitted Advances in respect of
which such offers are accepted shall be allocated by the Agent among such
Lenders as nearly as possible (in such multiples, not less than $1,000,000, as
it may deem appropriate) in proportion to the aggregate principal amounts of
such offers. Determinations by the Agent of the allocations of Uncommitted
Advances shall be binding and conclusive in the absence of manifest error. The
Agent shall promptly notify the Borrower and the Lenders of any allocation
pursuant to this Section 2.13(e).
(f) Funding. In the case of an Uncommitted Borrowing as to
which the Borrower has accepted the offer of one or more Lenders to make an
Uncommitted Advance under clause (d) above, before 12:00 noon (New York City
time) on the date of such Uncommitted Borrowing, each such Lender shall make
available for the account of its Applicable Lending Office to the Agent at the
Agent's Account, in same day funds, such Lender's portion of such Uncommitted
Borrowing. Upon fulfillment of the applicable conditions set forth in Article
III and after receipt by the Agent of such funds, the Agent will make such funds
available to the Borrower by depositing the same in immediately available funds
into such account as the Borrower shall have specified in the related notice of
acceptance (in substantially the form of Exhibit G). Promptly after each
Uncommitted Borrowing the Agent will notify each Lender of the amount of the
Uncommitted Borrowing, the aggregate principal amount of the Uncommitted
Advances then outstanding and the dates upon which such Uncommitted Advances
commenced and will mature.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
AND LENDING
SECTION 3.01. Condition Precedent to Effectiveness of Sections
2.01 and 2.13. Sections 2.01 and 2.13 shall become effective on and as of the
first date on which the Agent shall have received the following, each dated such
day, in form and substance satisfactory to the Agent and (except for the Notes)
in sufficient copies for each Lender:
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(a) Notes. The Committed Notes and the Uncommitted Notes to
the order of the Lenders, respectively;
(b) Resolutions, Etc. Certified copies of documents evidencing
all necessary corporate action and governmental approvals, if any, with
respect to this Agreement, the Committed Notes and the Uncommitted
Notes;
(c) Incumbency. A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures of
the officers of the Borrower authorized to sign this Agreement, the
Committed Notes, the Uncommitted Notes and the other documents to be
delivered hereunder; and
(d) Legal Opinion. An opinion of counsel to the Borrower
substantially in the form of Exhibit H.
SECTION 3.02. Conditions Precedent to Each Advance. The
obligation of each Lender to make each Advance (including the initial Advance)
as part of a Borrowing shall be subject to the further conditions precedent that
(i) on the date of such Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing or the notice of
acceptance under Section 2.13(d), as the case may be, and the acceptance by the
Borrower of the proceeds of such Advance shall constitute a representation and
warranty by the Borrower that on the date of such Advance the following
statements shall be true): (x) the representations and warranties contained in
Section 4.01 are correct in all material respects on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
and (y) no event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, that would
constitute an Event of Default, or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both and, (ii) in the
case of a requested Borrowing the proceeds of which are to be used to purchase
or carry any Margin Stock, the Borrower shall deliver to the Agent a certificate
of the chief financial officer of the Borrower accompanying the relevant Notice
of Borrowing setting forth in reasonable detail the basis upon which the
Borrower has made the representation set forth in the third sentence of Section
4.01(l) on and as of the date of such Borrowing, before and after giving effect
to such Borrowing and to the application of the proceeds therefrom.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Corporate Existence. The Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Connecticut.
(b) Corporate Authorization, Etc. The execution, delivery and
performance by the Borrower of this Agreement and the Notes are within
the Borrower's corporate powers, have been duly authorized by all
necessary corporate action and do not contravene (i) the Borrower's
charter or by-laws or (ii) any law or contractual restric tion binding
on or affecting the Borrower or any of its Subsidiaries.
(c) No Approvals. No authorization, approval or action by, and
no notice to or filing with, any governmental authority or regulatory
body is required for the due execution, delivery and performance by the
Borrower of this Agreement or the Notes.
(d) Enforceability. This Agreement is and upon issuance and
delivery thereof in accordance with Article III each Note will be the
legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
(e) Financial Information. The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of December 31, 1994
and the related statements of income and retained earnings of the
Borrower and its Consolidated Subsidiaries for the fiscal year then
ended, copies of which have been furnished to the Lenders, fairly
present in all material respects the financial condition of the
Borrower and its Consolidated Subsidiaries as of such date and the
results of the operations of the Borrower and its Consolidated
Subsidiaries for the period ended on such date, all in accordance with
GAAP consistently applied.
(f) No Litigation. Except as disclosed or otherwise reflected
in the Borrower's Annual Report on Form 10-K for the year ended
December 31, 1994, there is no pending or (to the best of the
Borrower's knowledge) threatened action or proceeding against the
Borrower or any of its Subsidiaries or relating to any of their re
spective properties before any court, governmental agency or
arbitrator, which could reasonably be expected to have a Material
Adverse Effect or which purports to affect the legality, validity or
enforceability of this Agreement or any Note.
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(g) No Material Adverse Effect. Since December 31, 1994, there
has been no event, act or condition which has had a Material Adverse
Effect.
(h) Environmental Matters. Except as disclosed or otherwise
reflected in the Borrower's Annual Report on Form 10-K for the year
ended December 31, 1994, neither the Borrower nor any of its
Subsidiaries has received notice or otherwise obtained knowledge of any
claim, demand, action, event, condition, report or inves tigation
indicating or concerning any potential or actual liability which could
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect arising in connection with (i) any
non-compliance with or violation of the requirements of any applicable
federal, state or local environmental health or safety statutes or
regulations, or (ii) the release or threatened release of any toxic or
hazardous waste, substance or constituent into the environment.
(i) Investment Company. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(j) Disclosure. The information furnished in writing by or on
behalf of the Borrower to the Lenders in connection with the
negotiation, execution and delivery of this Agreement does not contain
any material misstatements of fact or omit to state a material fact
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading.
(k) No Defaults. The Borrower (i) is not in default under or
with respect to this Agreement or any Note, and (ii) is not in default
under or with respect to any other agreement, instrument or undertaking
to which it is a party or by which it or any of its property is bound
in any respect which could reasonably be expected to result in a
Material Adverse Effect.
(l) Use of Proceeds, Etc. All proceeds of each Advance will be
used by the Borrower only in accordance with the provisions of Section
2.12. The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock and no proceeds
of any Advance will be used to extend credit to others for the purpose
of purchasing or carrying any Margin Stock. Neither the making of any
Advance nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations G, U, or X issued by
the Board of Governors of the Federal Reserve System.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or
any other amount owing hereunder shall remain unpaid or any Lender shall have
any Commitment hereunder:
(a) Financial Information. The Borrower will furnish to the
Lenders:
(i) Quarterly Financial Statements. Within 50 days
after the close of each quarterly accounting period in each
fiscal year of the Borrower, the con solidated balance sheet
of the Borrower and its Consolidated Subsidiaries as at the
end of such quarterly period and the related consolidated and
consolidating statements of income, retained earnings and cash
flows for such quarterly period and for the elapsed portion of
the fiscal year ended with the last day of such quarterly
period, in each case setting forth comparative figures for the
related periods in the prior fiscal year.
(ii) Annual Financial Statements. Within 95 days
after the close of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at the end of such fiscal year
and the related consolidated statement of income, retained
earnings and cash flows for such fiscal year, setting forth
comparative figures for the preceding fiscal year and reported
on without qualification by independent certified public
accountants of recognized national standing, in each case
together with a report of such accounting firm stating that in
the course of its regular audit of the consolidated financial
statements of the Borrower, which audit was conducted in
accordance with generally accepted auditing standards, such
accounting firm has obtained no knowledge of any Default or
Event of Default relating to accounting matters (including,
without limitation, in respect of Section 5.01(f)), or if in
the opinion of such accounting firm such a Default or Event of
Default has occurred and is continuing, a statement as to the
nature thereof.
(iii) Officer's Certificates. At the time of the
delivery of the financial statements under clauses (i) and
(ii) above, a certificate of the chief financial officer of
the Borrower which certifies (x) that such financial
statements fairly present the financial condition and the
results of operations of the Borrower and its Subsidiaries on
the dates and for the periods indicated, and (y) that such
officer has reviewed the terms of this Agreement and has made,
or caused to be made under his or her supervision, a review in
reasonable detail of the business and condition of the
Borrower and its Consolidated Subsidiaries during the
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accounting period covered by such financial statements, and
that as a result of such review such officer has concluded
that no Default or Event of Default has occurred during the
period commencing at the beginning of the accounting period
covered by the financial statements accompanied by such
certificate and ending on the date of such certificate or, if
any Default or Event of Default has occurred, specifying the
nature and extent thereof and, if continuing, the action the
Borrower proposes to take in respect thereof. Such certificate
shall set forth the calculations required to establish whether
the Borrower was in compliance with the provisions of Section
5.01(f) for the twelve-month period ending as at the end of
the accounting period covered by the financial statements
accompanied by such certificate.
(iv) Notice of Default or Litigation. Promptly after
the Borrower obtains knowledge thereof, notice of (i) the
occurrence of any Default or Event of Default, or (ii) any
litigation or governmental proceeding pending or threatened
against the Borrower or other event, act or condition which
could reasonably be expected to result in a Material Adverse
Effect.
(v) SEC Filings. Promptly upon transmission thereof,
copies of all regular and periodic financial information,
proxy materials and other information and reports, if any,
which the Borrower shall file with the Securities and Exchange
Commission or any governmental agencies substituted therefor
or which the Borrower shall send to its stockholders.
(vi) Other Information. From time to time, and as
soon as reasonably practicable, such other information or
documents (financial or otherwise) as any Lender through the
Agent may from time to time reasonably request.
(b) Compliance with Law. The Borrower shall, and shall cause
each of its Subsidiaries to, comply with all applicable laws, rules,
statutes, regulations, decrees and orders of all governmental bodies,
domestic or foreign, in respect of the conduct of their business and
the ownership of their property, except such non-compliance as could
not reasonably be expected to result in a Material Adverse Effect at
the time of such noncompliance or in the foreseeable future.
(c) Payment of Taxes. The Borrower shall pay or cause to be
paid, and shall cause each of its Subsidiaries to pay or cause to be
paid, when due, all taxes, charges and assessments and all other lawful
claims required to be paid by the Borrower or such Subsidiaries, except
(x) as contested in good faith and by appropriate proceedings
diligently conducted, if adequate reserves have been established with
respect thereto in accordance with GAAP and (y) where such nonpayment
could not reasonably be expected to result in a Material Adverse
Effect.
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(d) Preservation of Corporate Existence. The Borrower shall,
and shall cause each of its Subsidiaries to, do all things necessary to
preserve, renew and keep in full force and effect its corporate
existence and the licenses, permits, rights and franchises necessary to
the proper conduct of its business, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries will engage in any
business if, as a result, the general nature of the business, taken on
a consolidated basis, which would then be engaged in by the Borrower
and its Subsidiaries would be substantially changed from the general
nature of the business engaged in by the Borrower and its Subsidiaries
on the date of this Agreement.
(e) Maintenance of Books and Records. The Borrower will
maintain financial records in accordance with GAAP, consistently
applied. The representatives of the Agent or any of the Lenders shall
have the right to visit and inspect any of the properties of the
Borrower and of any of its Subsidiaries, to examine their books of
account and records and take notes and make transcripts therefrom, and
to discuss their affairs, finances and accounts with, and be advised as
to the same by, their officers at such reasonable times and intervals
as may be requested.
(f) Financial Condition. The Borrower shall cause Consolidated
Cash Flow to equal or exceed 125% of Consolidated Cash Expenditures at
the end of each fiscal quarter for the twelve-month period then ended.
The defined terms used in this clause (f) shall be construed in
accordance with GAAP and as follows:
(i) "Consolidated Cash Flow" means for any fiscal
period the sum of (A) consolidated earnings before income
taxes of the Borrower and its Consolidated Subsidiaries for
such fiscal period (including any earnings representing net
gain on disposition of assets) before extraordinary items and
their tax effects and before income from discontinued
operations; (B) to the extent such amount is greater than
zero, (x) consolidated interest expense for the Borrower and
its Consolidated Subsidiaries for such fiscal period, minus
(y) consolidated interest earnings for the Borrower and its
Consolidated Subsidiaries for such fiscal period; and (C)
consolidated depreciation and amortization for the Borrower
and its Consolidated Subsidiaries for such fiscal period; and
(ii) "Consolidated Cash Expenditures" means for any
fiscal period the sum of (A) consolidated interest expense of
the Borrower and its Consolidated Subsidiaries, (B)
consolidated capital expenditures of the Borrower and its
Consolidated Subsidiaries and (C) the aggregate amount of all
dividends paid or declared by the Borrower on any of its
capital stock during such fiscal period; and
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(iii) "Consolidated Subsidiary" means at any date any
Subsidiary or other entity the financial statements of which
would, under GAAP, be con solidated with those of the Borrower
in its consolidated financial statements as of such date.
SECTION 5.02. Negative Covenants. So long as any Advance or
any other amount owing hereunder shall remain unpaid or any Lender shall have
any Commitment hereunder:
(a) No Liens. The Borrower shall not, and shall not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist,
directly or indirectly, any Lien on any Principal Property now owned or
hereafter acquired (unless the Borrower secures the Advances made
hereunder equally and ratably with such Lien), other than:
(i) Liens existing and disclosed to the Lenders in
writing prior to the date hereof;
(ii) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(iii) Statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other Liens
imposed by law cre ated in the ordinary course of business for
amounts not yet due or which are being contested in good faith
by appropriate proceedings diligently conducted and with
respect to which adequate bonds have been posted;
(iv) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of
borrowed money);
(v) Easements, rights-of-way, zoning and similar
restrictions and other similar charges or encumbrances not
interfering with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries and which do not detract
materially from the value of the property to which they attach
or impair materially the use thereof by the Borrower or any of
its Subsidiaries;
(vi) Liens on property of any Person existing at the
time such Person becomes a Subsidiary of the Borrower;
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(vii) Liens securing Indebtedness owed by a
Subsidiary of the Borrower to the Borrower or another
Subsidiary of the Borrower;
(viii) any Lien arising solely by operation of law in
the ordinary course of business or which is contained in a
contract for the purchase or sale of goods or services entered
into in the ordinary course of business;
(ix) Liens on any property existing at the time of
acquisition but only if the amount of outstanding Indebtedness
secured thereby does not exceed the lesser of the fair market
value or the purchase price of the property as purchased;
(x) any Lien securing the purchase price of revenues
or assets purchased after the date hereof or the cost of
repairing or altering, constructing, developing or
substantially improving all or any part of such revenues or
assets; provided that such Lien attaches only to such revenues
or assets (including any improvements) and the Indebtedness
thereby secured does not exceed the lesser of the fair market
value or the purchase price of the revenues or assets
(including any improvements) as purchased;
(xi) any other Liens securing Indebtedness which in
the aggregate does not exceed 10% of Consolidated Net Tangible
Assets at any time outstanding; and
(xii) any extension, renewal or replacement of any of
the Liens referred to above; provided that the Indebtedness
secured by any such extension, renewal or replacement does not
exceed the sum of the principal amount of the Indebtedness
originally secured thereby and any fee incurred in connection
with such transaction.
(b) Merger, Etc. The Borrower shall not (i) enter into any
merger or consolidation, or liquidate, wind-up or dissolve (or suffer
any liquidation, wind-up or dissolution), discontinue its business or
convey, lease, sell, transfer or otherwise dispose of, in one
transaction or series of transactions, all or substantially all of its
business or property, whether now or hereafter acquired, or (ii) permit
any of its Subsidiaries to do so, if such action could reasonably be
expected to have a Material Adverse Effect, except that any
wholly-owned Subsidiary of the Borrower may merge into or convey, sell,
lease or transfer all or substantially all of its assets to, the
Borrower or any other wholly-owned Subsidiary of the Borrower and the
Borrower or any of its Subsidiaries may enter into any merger or
consolidation so long as in the case of a transaction involving the
Borrower, the Borrower, or in the case of any other transaction, a
Subsidiary of the Borrower, is the surviving entity in such transaction
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and, after giving effect thereto, no Default or Event of Default shall
have occurred or be continuing.
(c) Sale-Leasebacks. The Borrower shall not, and shall not
permit any of its Subsidiaries to, become liable, directly or
indirectly, with respect to any lease, whether an operating lease or a
Capital Lease, of any property (whether real or personal or mixed)
whether now owned or hereafter acquired (except for property the
aggregate value of which at the time such lease is entered into is less
than 10% of Consolidated Net Tangible Assets), (i) which the Borrower
or such Subsidiary has sold or transferred or is to sell or transfer to
any other Person, or (ii) which the Borrower or such Subsidiary intends
to use for substantially the same purposes as any other property which
has been or is to be sold or transferred by the Borrower or such
Subsidiary to any other Person in connection with such lease.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay when due any principal of
any Advance (or, if any such failure is due solely to technical or
administrative difficulties relating to the transfer of such amounts,
within two Business Days after its due date) or the Borrower shall fail
to pay when due any interest on any Advance, any fee (other than the
facility fee and the Agent's fees referenced in Section 2.03(b)) or any
other amount payable by it hereunder or under any Note and five (5)
days shall have elapsed from the date such interest, fees or other
amounts were due; or with respect to the facility fee payable pursuant
to Section 2.03, the Borrower shall fail to pay the facility fee when
due and two Business Days shall have elapsed from the Borrower's
receipt of notice of such nonpayment from the Agent or any Lender; or
(b) Any representation or warranty made by the Borrower herein
or pursuant to this Agreement or any Note shall prove to have been
incorrect in any material respect when made or deemed made; or
(c) The Borrower shall fail to perform any term, covenant or
agreement contained in Section 5.01(a)(iv), 5.01(f) or 5.02 on its part
to be performed or observed; or
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(d) The Borrower shall fail to perform any term, covenant or
agreement contained in this Agreement (except those described in
clauses (a) and (c) above) and such failure shall continue for 30 days;
or
(e) A court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Borrower or any of its
Principal Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or other similar official of the Borrower or such
Principal Subsidiary or for any substantial part of its property, or
ordering the winding up or liquidation of its affairs and such decree
or order shall remain unstayed and in effect for a period of 30
consecutive days; or
(f) The Borrower or any of its Principal Subsidiaries shall
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or shall consent to
the entry of any order for relief in an involuntary case under any such
law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Borrower or such Principal Subsidiary or for any
substantial part of its property, or shall make any general assignment
for the benefit of creditors, or shall fail generally to pay its debts
as they become due, or shall take any corporate action in furtherance
of any of the foregoing; or
(g) (A) The Borrower shall fail to make any payment in respect
of Indebtedness when due (whether by scheduled maturity, required
prepayment, acceleration or otherwise) if the aggregate amount of such
payment is $5,000,000 or more, or (B) any breach, default or event of
default shall occur and be continuing (and applicable grace and notice
periods shall have expired) under any agreement or indenture relating
to any Indebtedness in an aggregate amount of $5,000,000 or more, and,
except in the case of financial covenant defaults, the maturity of any
such Indebtedness has been accelerated in accordance with the terms
thereof; or
(h) (A) Any Termination Event shall occur, or (B) any Plan
shall incur an "accumulated funding deficiency" (as defined in Section
412 of the Code or Section 302 of ERISA), whether or not waived, or (C)
the Borrower or any member of its ERISA Controlled Group shall fail to
pay when due an amount which it shall have become liable to pay to the
PBGC, any Plan or a trust established under Title IV of ERISA, or (D) a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that an ERISA Plan must be terminated or
have a trustee appointed to administer any ERISA Plan, or (E) the
Borrower or a member of its ERISA Controlled Group suffers a partial or
complete withdrawal from a Multiemployer Plan or is in "default" (as
defined in Section 4219(c)(5) of ERISA) with
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respect to payments to a Multiemployer Plan, or (F) a proceeding shall
be instituted against the Borrower or any member of its ERISA
Controlled Group to enforce Section 515 of ERISA, or (G) any other
event or condition shall occur or exist with respect to any Plan, if
such events, transactions or conditions set forth in clauses (A)
through (G) above could singly or in the aggregate be reasonably
expected to have a Material Adverse Effect; or
(i) If there shall remain in force, undischarged, unsatisfied
and unstayed, for more than 30 days, whether or not consecutive, any
final judgment against the Borrower or any of its Principal
Subsidiaries which, when added to any other outstanding final judgments
which remain undischarged, unsatisfied and unstayed for more than 30
days against the Borrower or any such Principal Subsidiary, exceeds
$5,000,000;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, (i) declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare all
Advances, the Notes, all interest thereon and all other amounts payable under
this Agreement to be forthwith due and payable, whereupon all Advances, the
Notes, all such interest and all such amounts shall become and be forthwith due
and payable, without present ment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however that in the case of any of the Events of Default specified in clauses
(e) or (f) above with respect to the Borrower, (A) the obligation of each Lender
to make Advances shall automatically be terminated and (B) the Advances, the
Notes, all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to
the Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such
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instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that the Agent shall not be required to take any action that
exposes the Agent to personal liability or that is contrary to this Agreement or
applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of the Borrower
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note or Notes issued to it, Citibank
shall have the same rights and powers under this Agreement as any other Lender
and may exercise the same as though it were not the Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include Citibank in
its individual capacity. Citibank and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, the
Borrower, any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if Citibank were not
the Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it
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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 Agent 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.
SECTION 7.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrower), ratably according to
the respective principal amounts of the Committed Notes then held by each of
them (or if no Committed Notes are at the time outstanding or if any Committed
Notes are held by Persons that are not Lenders, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 7.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent, which shall be (i) a Lender or (ii) if no Lender shall accept
appointment as the Agent within 30 days after such resignation or removal, any
other Person, which Person, so long as no Default shall have occurred and be
continuing, shall be reasonably acceptable to the Borrower. If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring Agent,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be (i) a Lender or (ii) any other Person, which Person, so
long as no Default shall have occurred and be continuing, shall be reasonably
acceptable to the Borrower. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, discretion, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its
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benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Required Lenders, or in the case of
Section 2.13 and any Uncommitted Note, the Borrower and the Lender to which such
Note is payable, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided, that
the written consent of the Borrower and all the Lenders shall be required in
order to amend or waive any provision of the Agreement or the Notes other than
Section 2.13 and the Uncommitted Notes which would have the effect of (a) a
reduction in principal, interest or fees payable to the Lenders under this
Agreement or the Committed Notes, (b) the postponement of any date fixed for the
payment of any principal, interest or fees under this Agreement or the Committed
Notes, (c) an increase in the Commitments, (d) amending or waiving compliance
with the last sentence of Section 2.01(a), Section 2.08, Section 8.05 or this
Section 8.01, or (e) amending the definition of Required Lenders; and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required above to take such action,
affect the rights or duties of the Agent under this Agreement or any Note.
SECTION 8.02. Notices, etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier
or telex communication) and mailed, telecopied, telexed or delivered, if to the
Borrower, at its address at 0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxxx 00000,
Attention: Secretary, telecopy no. 000-000-0000, with a copy to Xxxxx X.
Xxxxxxx, Director, Corporate Finance, at the same address and telecopy no. 203-
827-3848; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Agent, at its address at 0xx Xxxxx, Xxxx 0, Xxx
Xxxxx Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000, Attention: Loan Investor
Services Department; or, as to the Borrower or the Agent, at such other address
as shall be designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be designated by
such party in a written notice to the Borrower and the Agent. All such notices
and communications shall, when telecopied or telexed, be effective when
telecopied (with receipt confirmed by telephone) or confirmed by telex
answerback, respectively, and when mailed or delivered, when received, except
that notices and communications to the Agent pursuant to Article II, III or VII
shall not
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be effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses; Breakage Indemnification.
(a) The Borrower agrees to pay on demand all reasonable costs and expenses, if
any (including, without limitation, counsel fees and expenses reasonably
incurred), of the Agent and each Lender in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 8.04(a).
(b) If any payment, prepayment or conversion of any Eurodollar
Rate Advance or a Fixed Rate Advance is made by the Borrower to or for the
account of a Lender other than on the last day of the Interest Period for such
Advance, as a result of acceleration of the maturity of the Advances, the Notes
pursuant to Section 6.01 or for any other reason other than in connection with
Section 2.02(c), the Borrower shall, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment, including,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund or maintain such Advance.
(c) The Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of, or in connection with
the preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the actual or proposed use of
the proceeds of the Advances in connection with any acquisition or proposed
acquisition by the Borrower or any Subsidiary of the Borrower of another Person
or one or more businesses of another Person (whether by means of a stock
purchase, asset acquisition or otherwise), whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the
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transactions contemplated hereby are consummated, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct.
SECTION 8.05. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the Committed Advances owing to it
(other than pursuant to Section 2.02(d), 2.06, 2.08, 2.10 or 8.04(b)) in excess
of its ratable share of payments on account of the Committed Advances obtained
by all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the Committed Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total amount so recovered
from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 8.05 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.13, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed and delivered by the Borrower and when the Agent shall
have been notified by each Initial Lender that such Initial Lender has executed
it, and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Agent and the Lenders and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights or
obligations hereunder or under any Note or any interest herein or therein (other
than as permitted by Section 5.02(b)) without the prior written consent of the
Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Committed Advances owing to it and the Committed Note or Notes
held by it); provided, however, that (i) each such assignment (other than
assignment to an affiliate of such Lender) shall require the prior written
consent of the Borrower, which consent shall not be unreasonably withheld, (ii)
each such assignment shall be of a constant, and not a varying, percentage of
all rights and obligations under this Agreement (other than any right to make
Uncommitted Advances,
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Uncommitted Advances owing to it and Uncommitted Notes), (iii) except in the
case of an assignment to a Person that, immediately prior to such assignment,
was a Lender or an assignment of all of a Lender's rights and obligations under
this Agreement, the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof,
and (iv) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance (which shall include the agreement of the assignee party to such
assignment, for the benefit of the Borrower, to be bound by the terms and
provisions of this Agreement to the same extent as if it were an original party
hereto), together with any Committed Note subject to such assignment and a
processing and recordation fee of $3,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to
it pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and 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).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, 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; (ii) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 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; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental
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thereto; and (vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Committed Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit I hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Committed Note
a new Committed Note to the order of such Eligible Assignee in an amount equal
to the Commitment assumed by it pursuant to such Assignment and Acceptance and,
if the assigning Lender has retained a Commitment hereunder, a new Committed
Note to the order of the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Committed Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such
surrendered Committed Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto. Such Assignment and Acceptance shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Person as a Lender and the resulting adjustment of the
Commitments, if any, arising from such assignment of Commitments to such Person.
(d) The Agent shall maintain at its address referred to in
Section 8.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the
Lenders and the Commitment of, and principal amount of the Advances owing to,
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks
or other xxxxx cial institutions in all or a portion of its rights and/or
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment, the Advances owing to it and the Note or Notes held
by it); provided that (i) such Lender's obligations under this Agreement
(including, without limitation, its Commitment) shall remain unchanged, (ii)
such Lender shall remain solely responsible to the Borrower for the performance
of such obligations, (iii) the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (iv) such
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participant's right to consent to any modification, waiver or release of any of
the provisions of this Agreement shall be limited to the right to consent to (A)
any reduction in principal, interest or fees payable to such Lender under this
Agreement, (B) the postponement of any date fixed for the payment of any
principal, interest or fees under this Agreement and (C) increase in the
Commitment, and (D) any amendments to the foregoing clauses (A), (B) and (C).
SECTION 8.08. Limitation on Assignments and Participations.
(a) Any Lender may, in connection with any actual or proposed assignment or
participation pursuant to Section 8.07, disclose to the actual or proposed
assignee or participant, any information relating to the Borrower furnished to
such Lender by or on behalf of the Borrower; provided that the actual or
proposed assignee or participant shall have agreed prior to any such disclosure
to preserve the confidentiality of any confidential information relating to the
Borrower received by it from such Lender or the Borrower.
(b) Notwithstanding anything in Section 8.07 to the contrary,
no Lender shall have the right to assign its rights and obligations hereunder or
any interest therein or to sell participations to one or more banks or other
financial institutions in all or a portion of its rights hereunder or any
interest therein where the result of such assignment or participation would be
reasonably expected to entitle the Lender to claim additional amounts pursuant
to Section 2.02(d), 2.06, 2.08, 2.10, 2.13(f) or 8.04 or would otherwise result
in an increase in the Borrower's obligations.
(c) Anything in this Section 8.08 to the contrary
notwithstanding, any Lender may assign and pledge all or any portion of its
rights to payment of the Advances owing to it hereunder to any Federal Reserve
Bank (and its transferees) as collateral security pursuant to Regulation A of
the Board of Governors of the Federal Reserve System and any applicable
Operating Circular issued by such Federal Reserve Bank. No such assignment shall
have the effect of releasing such Lender from its obligations hereunder.
SECTION 8.09. Withholding. If any Lender, or any Person that
becomes a party to this Agreement pursuant to Section 8.07, is not incorporated
under the laws of the United States of America or a state thereof, such Person
agrees that, prior to the first date on which any payment is due to it
hereunder, it will deliver to each of the Borrower and the Agent (i) two duly
completed copies of United States Internal Revenue Service Form 1001 or 4224 or
successor applicable form, as the case may be, certifying in each case that such
Person is entitled to receive payments under this Agreement and the Note or
Notes payable to it, without deduction or withholding of any United States
federal income taxes, and (ii) an Internal Revenue Service Form W-8 or W-9 or
successor applicable form, as the case may be, to establish an exemption from
United States backup withholding tax. Each Person which delivers to the Borrower
a Form 1001 or 4224 and Form W-8 or W-9 pursuant to the preceding sentence
further undertakes to deliver to each of the Borrower and the Agent two
45
51
further copies of Form 1001 or 4224 and Form W-8 or W-9, or successor applicable
forms, or other manner of certification, as the case may be, on or before the
date that any such form expires or becomes obsolete or after the occurrence of
any event requiring a change in the most recent form previously delivered by it
to the Borrower and the Agent, and such extensions or renewals thereof as may
reasonably be requested by the Borrower or the Agent, certifying in the case of
a Form 1001 or 4224 that such Person is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, unless in any such case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior to the date on which any
such delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Person from duly completing and
delivering any such form with respect to it and such Person advises the Borrower
and the Agent that it is not capable of receiving payments without any deduction
or withholding of United States federal income tax, and in the case of a Form
W-8 or W-9, establishing an exemption from United States backup withholding tax.
SECTION 8.10. Mitigation. In the event that any Lender claims
any amounts under Sections 2.02(d), 2.06, 2.08, 2.10 or 8.04(b), it shall use
all reasonable efforts (consistent with its internal policies and legal and
regulatory restrictions) to take actions (including, without limitation,
changing the jurisdiction of its Applicable Lending Office) so as to eliminate
such additional amounts; provided that such Lender shall not be required to take
any action if, in its reasonable judgment, such action would be materially
disadvantageous to it.
SECTION 8.11. Governing Law; Waiver of Jury Trial. THIS
AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 8.13. Submission to Jurisdiction. The Borrower hereby
submits to the nonexclusive jurisdiction of the United States District Court for
the Southern District of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out of or relating to
this Agreement or any Note. The Borrower irre vocably waives, to the fullest
extent permitted by law, any objection which it may now or
46
52
hereafter have to the laying of the venue of any such proceeding brought in such
a court and a claim that such proceeding brought in such a court has been
brought in an inconvenient forum.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective signatories thereunto duly
authorized, as of the date first above written.
THE XXXXXXX WORKS
By Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director Corp. Finance
47
53
$22,500,000 CITIBANK, N.A.,
as Agent and as Lender
By Xxxxx xx Xxxxxxxxxxxx
----------------------------------
Name: Xxxxx xx Xxxxxxxxxxxx
Title: Managing Director
INITIAL LENDERS
$20,000,000 WACHOVIA BANK OF GEORGIA, N.A.
By Xxxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
$20,000,000 BANQUE NATIONALE DE PARIS
By Xxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
By Sophie Revillard Xxxxxxx
----------------------------------
Name: Sophie Revillard Xxxxxxx
Title: Vice President
$ 5,000,000 BARCLAYS BANK PLC
By Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Associate Director
$15,000,000 SHAWMUT BANK CONNECTICUT, N.A.
By Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
48
54
$20,000,000 ROYAL BANK OF CANADA
NEW YORK BRANCH
By Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Manager
$15,000,000 MELLON BANK, N.A.
By Xxxx Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxx Xxxxxxx
Title: Assistant Vice President
$20,000,000 XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
$12,500,000 XXXXX XXXXXX XXXX & XXXXX XX.
Xx F. Xxxxxx Xxxxx
-----------------------------------
Name: F. Xxxxxx Xxxxx
Title: Vice President
49
55
SCHEDULE I
ADDRESS AND APPLICABLE LENDING OFFICES
Name of Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
=============================================================================================================================
Citibank, N.A. Citibank, N.A. Citibank, N.A.
0xx Xxxxx, Xxxx 0 0xx Xxxxx, Xxxx 1 7th Floor, Zone 1
One Court Square One Court Square One Court Square
Long Island City, N.Y. 11120 Long Island City, N.Y. 00000 Xxxx Xxxxxx Xxxx, X.X. 00000
Xxxxxxxx: 000-000-0000
Telephone: 000-000-0000/000-000-0000
Attn: Xxxxx xx Xxxxxxxxxxxx/
Xxxxx Xxx
=============================================================================================================================
Banque Nationale BNP - New York BNP - Georgetown
de Paris 000 Xxxx Xxxxxx c/o BNP - N.Y.
000 Xxxx Xxxxxx Xxx Xxxx, X.X. 00000 000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000 Xxx Xxxx, X.X. 00000
Telecopy: 000-000-0000
Telephone: 000-000-0000
Attn: Xx. Xxxxxx Xxxxxxx
=============================================================================================================================
Xxxxxx Guaranty Loan Department c/o X.X. Xxxxxx
Trust Company of 00 Xxxx Xxxxxx Services, Inc.
Xxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Euro-Loan Servicing Xxxx
00 Xxxx Xxxxxx 000 Xxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000 Xxxxxxxxxx, XX 00000
Telecopy: 000-000-0000
Phone:000-000-0000
Attn: Xxxxx Xxxxxx
=============================================================================================================================
SCHEDULE I-1
56
Name of Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
========================================================================================================================
State Street Bank & Trust Co. Xxxxx Xxxxxx Xxxx & Xxxxx Xx. Xxxxx Xxxxxx Bank & Trust Co.225
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000 Xxxxxx, XX 00000-0000 Xxxxxx, XX 00000-0000
Attn: Mr. F. Xxxxxx Xxxxx Attn: Mr. F. Xxxxxx Xxxxx Attn: Mr. F. Xxxxxx Xxxxx
Telecopy: 000-000-0000 Telecopy: 000-000-0000 Telecopy: 000-000-0000
Phone: 000-000-0000 Phone: 000-000-0000 Phone: 000-000-0000
========================================================================================================================
SCHEDULE I-2
57
Name of Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
========================================================================================================================
Royal Bank of Canada Royal Bank of Canada Royal Bank of Canada
One Financial Square Grand Cayman (North America Grand Cayman (North America
23rd Floor No. 1) Branch No. 1) Branch
New York, New York c/o New York Branch x/x Xxx Xxxx Xxxxxx
00000-0000 One Financial Square One Financial Square
Telecopy: (000) 000-0000 00xx Xxxxx 00xx Xxxxx
Telephone: (000) 000-0000 Xxx Xxxx, Xxx Xxxx Xxx Xxxx, Xxx Xxxx
Attn: Manager, Credit 10005-3531 10005-3531
Administration
========================================================================================================================
Copy to:
Royal Bank of Canada
One Financial Square, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000-0000
Attn: Xxxxxx X. Xxxxxxxxx
Manager
Telecopy: 000-000-0000
Telephone: 000-000-0000
========================================================================================================================
Wachovia Bank of Wachovia Bank of Wachovia Bank of
Georgia, N.A. Georgia, N.A. Georgia, N.A.
000 Xxxxxxxxx Xx., XX 000 Xxxxxxxxx Xx.,XX 000 Xxxxxxxxx Xx.,XX
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Telecopy: 000-000-0000 Telecopy: 000-000-0000 Telecopy: 000-000-0000
Telephone: 000-000-0000 Telephone: 000-000-0000 Telephone: 000-000-0000
Attn: Xxxxxxxx Xxxxxxxxx Attn: Xxxxxxxx Xxxxxxxxx Attn: Xxxxxxxx Xxxxxxxxx
MC370 MC370 MC370
SCHEDULE I-3
58
Name of Lenders
And Addresses Domestic Eurodollar Uncommitted
For Notices Lending Office Lending Office Lending Office
------------------ ---------------- ---------------- --------------
Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC Barclays Bank PLC
X.X. Xxx 000 Xxxxxx x/x Xxxxxxx Loan Admin. 0xx Xxxxx
00 Xxxxxxx Xxxxxx Barclays Bank PLC Dept., 0xx Xxxxx 000 Xxxxxxxx
Xxxxxx XX0X 0XX 00 Xxxx Xxxxxx Xx. Swithins House New York, N.Y. 10038
New York, N.Y. 10265 00/00 Xx. Xxxxxxxx Xxxx
Xxxxxxxx: Xxxxxx XX0X 0XX Ref: Xxxxxxx Works
171-699-2298 Ref: Xxxxxxx Works Uncommitted Bid Option
Base Rate Advances Ref: Xxxxxxx Works
Contacts: Eurodollar Rate Advances Contacts:
Xxxxxxxx Xxxx Telecopy: 000-000-0000 Xxx Xxxxxxxxx
Tel. No. Telecopy: 171-621-4583 Xxxx Xxxxxx
171-699-2301 Contacts: Telex: 8950821 000-000-0000
Xxxxx Xxxxx Telecopy:
000-000-0000 Contacts:
Xxxxx Xxxx 000-000-000
171-621-4599
SCHEDULE I-4
59
Name of Lenders Domestic Eurodollar
And Addresses Lending Lending
For Notices Office Office
=========================================================================================================
Mellon Bank, X.X. Xxxxxx Bank, X.X. Xxxxxx Bank, N.A.
Three Mellon Center Three Mellon Center Three Mellon Center
Pittsburgh, Pa. Pittsburgh, Pa. Pittsburgh, Pa.
15259-0001 15259-0001 15259-0001
Telecopy: 000-000-0000 Mellon Financial Services Telecopy: 000-000-0000
Telephone: 000-000-0000 00 Xxxx 00xx Xxxxxx Telephone: 000-000-0000
Attn: Xxxxxx Xxxxxxxx xxx Xxxx, XX 00000 Attn: Xxxxxx Xxxxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
Attn: Xxxx Xxxx Xxxxxxx
=========================================================================================================
Shawmut Bank Shawmut Bank Shawmut Bank
Connecticut, N.A. Connecticut, N.A. Connecticut, N.A.
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxxxxxxx, Xx. Xxxxxxxx, Xx. Xxxxxxxx, Xx.
06115 06115 06115
Telecopy: 000-000-0000 Telecopy: 000-000-0000 Telecopy: 000-000-0000
Telephone: 000-000-0000 Telephone: 000-000-0000 Telephone: 000-000-0000
Attn: Xxxx Xxxxx Attn: Xxxxxxx Xxxxxxx Attn: Xxxxxxx Xxxxxxx
SCHEDULE I-5
60
EXHIBIT A
PROMISSORY NOTE
(Committed Advances)
$_______ Dated:_______
FOR VALUE RECEIVED, the undersigned, The Xxxxxxx Works, a
Connecticut corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[NAME OF LENDER] (the "Lender") the principal sum of $ or, if less, the
aggregate principal amount of all Committed Advances made by the Lender to the
Borrower pursuant to the Credit Agreement referred to below outstanding on the
Termination Date, and such amount shall be paid on or prior to the Termination
Date as provided in the Credit Agreement referred to below.
Capitalized terms used herein and not defined herein shall
have the meanings provided in the Credit Agreement referred to below.
The Borrower promises to pay interest on the principal amount
of each Committed Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement referred to below.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 in same day funds. Each Committed Advance made by the
Lender to the Borrower and the maturity thereof, and all payments made on
account of the principal amount thereof, shall be recorded by the Lender and,
prior to any transfer hereof, endorsed on the grid attached hereto which is a
part of this Promissory Note, which recordation shall be conclusive and binding
absent manifest error but the failure to make such recording shall not have any
effect on the Lender's rights hereunder.
This Promissory Note is one of the Committed Notes referred to
in, and is entitled to the benefits of, the Facility B (Five Year) Credit
Agreement dated as of October 25, 1995 (as amended, modified or supplemented
from time to time, the "Credit Agreement), among the Borrower, the Lender and
certain other lenders parties thereto, and Citibank, N.A., as Agent for the
Lender and such other lenders. The Credit Agreement, among other things,
A-1
61
(i) provides for the making of Committed Advances by the Lender to the Borrower
from time to time in an aggregate amount not to exceed at any time outstanding
the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Committed Advance being evidenced by this Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
THE XXXXXXX WORKS
By_____________________
Name:
Title:
By_____________________
Name:
Title:
A-2
62
ADVANCES AND PAYMENTS OF PRINCIPAL
================================================================================
Date Amount of Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
===== ========= ======================== ================ ========
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
A-3
63
EXHIBIT B-1
RATE REQUEST
Citibank, N.A., as Reference Bank
under the Credit Agreement
referred to below
0xx Xxxxx, Xxxx 0
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
[Date]
Ladies and Gentlemen:
The undersigned, The Xxxxxxx Works, refers to the Facility B (Five
Year) Credit Agreement, dated as of October 25, 1995 (as amended, modified or
supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined) among the undersigned, certain
Lenders parties thereto, and Citibank, N.A., as Agent for said Lenders and
hereby requests notification from you pursuant to Section 2.02(a) thereof of the
Eurodollar Rate which is applicable to the Committed Advance to be made (or
converted or continued) on , 19 in the principal amount of $ with the Interest
Period of months.
Very truly yours,
The Xxxxxxx Works
By______________________
Name:
Title:
B1-1
64
_________________
TO BE COMPLETED AND RETURNED BY
REFERENCE BANK:
The rate requested above, determined as required by the Credit Agreement, is__.
CITIBANK, N.A., as Reference Bank
By____________________
Authorized Officer
B1-2
65
EXHIBIT B-2
NOTICE OF BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
0xx Xxxxx, Xxxx 0
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
[Date]
Ladies and Gentlemen:
The undersigned, The Xxxxxxx Works, refers to the Facility B
(Five Year) Credit Agreement, dated as of October 25, 1995 (as amended, modified
or supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Lenders parties thereto, and Citibank, N.A., as Agent for said Lenders, and
hereby gives you notice, irrevocably, pursuant to Section 2.02 of the Credit
Agreement that the undersigned hereby requests a Committed Borrowing under the
Credit Agreement, and in that connection sets forth below the information
relating to such Committed Borrowing (the "Proposed Committed Borrowing ") as
required by Section 2.02(b) of the Credit Agreement:
(i) The Business Day of the Proposed Committed Borrowing is__________,
19__.
(ii) The Type of Advances comprising the Proposed Committed Borrowing
is [Base Rate] [Eurodollar Rate].
(iii) The aggregate amount of the Proposed Committed Borrowing is
$______ .
[(iv)] The Initial Interest Period for each Eurodollar Rate Advance
made as part of the Proposed Committed Borrowing is month[s]].
B2-1
66
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Committed Borrowing:
(A) the representations and warranties contained in Section
4.01 of the Credit Agreement are correct in all material respects, before and
after giving effect to the Proposed Committed Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Committed Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
The Borrower's account information for funding purposes is
Account Xx. 00000000, Xxxxxxxx, X.X., XXX No. 021-00-0089, Long Island City, New
York, Ref. .
Very truly yours,
The Xxxxxxx Works
By_________________________
Name:
Title:
B2-2
67
EXHIBIT C
NOTICE OF CONVERSION OR CONTINUATION
[Date]
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
0xx Xxxxx, Xxxx 0
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
Ladies and Gentlemen:
The undersigned, The Xxxxxxx Works, refers to the Facility B
(Five Year) Credit Agreement, dated as of October 25, 1995 (as amended, modified
or supplemented from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned, certain
Lenders parties thereto, and Citibank, N.A., as Agent for said Lenders, and
hereby gives you notice, pursuant to Section 2.04(b) of the Credit Agreement
that the undersigned hereby elects to [convert][continue] the Committed
Borrowing consisting of[Base Rate][Eurodollar Rate] Advances:
(i) which is in the amount of $__________;
(ii) which, in the case of a Committed Borrowing consisting of
Eurodollar Rate Advances, has an Interest Period of month(s);* and
(iii) which was borrowed (or previously converted or
continued) on ________, 199_.
_____________
* Omit clause (ii) if Committed Borrowing consisted of Base Rate Advances.
C-1
68
Such [conversion][continuation] shall become effective on
, 199 , at which time such Advances shall be [converted into][continued
as] [Base Rate][Eurodollar Rate] Advances:
(i) which is in the amount of $_____________;*
and
(ii) which has an Interest Period of___month(s)**.
Very truly yours,
The Xxxxxxx Works
By__________________
Name:
Title:
___________
* Omit clause (i) if conversion or continuation is for entire amount of
Committed Borrowing.
** Omit clause (ii) if conversion is into Base Rate Advance.
C-2
69
EXHIBIT D
PROMISSORY NOTE
(Uncommitted Advances)
$150,000,000 Dated: October 25, 1995
FOR VALUE RECEIVED, the undersigned, The Xxxxxxx Works, a
Connecticut corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
[NAME OF LENDER] (the "Lender") the aggregate principal amount of all
Uncommitted Advances made by the Lender to the Borrower pursuant to the Credit
Agreement referred to below and such amount shall be paid in the amounts and on
the dates provided in the Credit Agreement referred to below.
Capitalized terms used herein and not defined herein shall
have the meanings provided in the Credit Agreement referred to below.
The Borrower promises to pay interest on the principal amount
of each Uncommitted Advance from the date of such Advance until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement referred to below.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Agent, for the account of the
Lender, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in same day funds. Each
Uncommitted Advance made by the Lender to the Borrower and the maturity thereof,
and all payments made on account of the principal amount thereof, shall be
recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is a part of this Promissory Note, which recordation shall
be conclusive and binding absent manifest error but the failure to make such
recording shall not have any effect on the Lender's rights hereunder.
This Promissory Note is one of the Uncommitted Notes referred
to in, and is entitled to the benefits of, the Facility B (Five Year) Credit
Agreement dated as of October 25, 1995 (as amended, modified or supplemented
from time to time, the "Credit Agreement"), among the Borrower, the Lender and
certain other lenders parties thereto, and Citibank, N.A., as Agent for the
Lender and such other Lenders. The Credit Agreement, among other things, (i)
provides for the making of Uncommitted Advances by the Lender to the Borrower
from time to time, the indebtedness of the Borrower resulting from each such
Uncommitted Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration
D-1
70
of the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
THE XXXXXXX WORKS
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
D-2
71
ADVANCES AND PAYMENTS OF PRINCIPAL
================================================================================
Date Amount of Amount of Principal Paid Notation
Advance or Prepaid Maturity Date Made By
===== ========= ======================== ================ ========
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
D-3
72
EXHIBIT E
FORM OF QUOTE REQUEST
[Date]
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
0xx Xxxxx, Xxxx 0
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
Ladies and Gentlemen:
The undersigned, The Xxxxxxx Works, refers to the
substantially identical Facility A (364 Day) Credit Agreement, dated as of
October 25, 1995 (as amended, modified or supplemented from time to time, the
"Credit Agreements", the terms defined therein being used herein as therein
defined), among the undersigned, certain Lenders parties thereto, and Citibank,
N.A., as Agent for said Lenders, and hereby gives you notice pursuant to Section
2.13 of the Credit Agreements that the undersigned hereby requests offers to
make an Uncommitted Borrowing under the Credit Agreement, and in that connection
sets forth the terms on which such Borrowing (the "Proposed Uncommitted
Borrowing") is requested to be made*:
(i) The Business Day of the Proposed Uncommitted Borrowing is _______,
19 .
(ii) The proposed aggregate amount of the Proposed Uncommitted
Borrowing is $------ .
--------
* Information required for a Borrowing may be repeated as necessary if more
than one Borrowing is being requested in one Form of Quote Request.
X-0
00
(xxx) The duration of the proposed Interest Period for the Proposed
Uncommitted Borrowing is .
(iv) The Type of Proposed Uncommitted Borrowing is [Fixed Rate]
[Floating Rate].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Uncommitted Borrowing:
(A) the representations and warranties contained in Section 4.01 of the
Credit Agreement are correct in all material respects, before and after giving
effect to the Proposed Uncommitted Borrowing on the same day and to the
application of the proceeds therefrom, as though made on and as of such date;
and
(B) no event has occurred and is continuing, or would result from such
Proposed Uncommitted Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an Event of
Default but for the requirement that notice be given or time elapse or both.
Very truly yours,
The Xxxxxxx Works
By
-------------------------------
Name:
Title:
X-0
00
XXXXXXX X
FORM OF QUOTE
[Date]
THE XXXXXXX WORKS
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
Re: Facility B (Five Year) Credit Agreement dated as of October 25, 1995 among
The Xxxxxxx Works, certain Lenders parties thereto, and Citibank, N.A., as Agent
for said Lenders (as amended, modified or supplemented from time to time, the
"Credit Agreement")
Ladies and Gentlemen:
The undersigned, [Name of Lender], refers to the
above-referenced Credit Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The undersigned hereby makes [a] Quote[s] pursuant to Section
2.13 of the Credit Agreement, in response to the Quote Request made by the
Borrower on , 19 , and in response thereto, sets forth below the
terms on which such Quote[s] [is] [are] made:
(i) The principal amount of the Uncommitted Advance is $ .
-----------
(ii) The Type of Uncommitted Advance is [Fixed Rate] [Floating
Rate].
(iii) The Floating Rate Margin in the case of a Floating Rate
Advance, or the Fixed Rate in the case of a Fixed Rate Advance, is .*
--------
* Clauses (i) through (iii) should be repeated as to each
additional offer being made.
F-1
75
The undersigned hereby confirms that it is prepared, subject
to the conditions set forth in the Credit Agreement, to extend credit to the
Borrower upon acceptance by the Borrower of this Quote in accordance with
Section 2.13(d) of the Credit Agreement.
Very truly yours,
[NAME OF LENDER]
By
-----------------------------
Name:
Title:
F-2
76
EXHIBIT G
FORM OF ACCEPTANCE
[Date]
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
0xx Xxxxx, Xxxx 0
Xxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
Re: Facility B (Five Year) Credit Agreement, dated as of October 25, 1995 (as
amended, modified or supplemented from time to time, the "Credit Agreement")
among the undersigned, certain Lenders parties thereto, and Citibank, N.A., as
Agent for said Lenders
Ladies and Gentlemen:
The undersigned, The Xxxxxxx Works, refers to the above
referenced Credit Agreement. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. In accordance with Section 2.13 of the Credit Agreements, we have
received [a] Quote/Quotes in connection with our Quote Request, dated ,
for [an] Uncommitted Borrowing[s] to occur on , and in
accordance with Section 2.13(d) of the Credit Agreement, we hereby accept the
following offer/offers for the Interest Period of [ ]:
Principal Amount Fixed Rate/Floating Rate Lender
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The Borrower's account information for funding purposes is Account Xx.
00000000, Xxxxxxxx, X.X., XXX Xx. 000-00-0000, Xxxx Xxxxxx Xxxx, Xxx Xxxx,
Ref.____.
Very truly yours,
The Xxxxxxx Works
By
--------------------------------
Name:
Title:
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EXHIBIT H
FORM OF OPINION OF GENERAL COUNSEL
[Date]
To each of the Lenders parties
to the Credit Agreement referred
to below and to
Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
I am the General Counsel of The Xxxxxxx Works, a Connecticut
corporation (the "Borrower"), and have acted as counsel to the Borrower in
connection with the Facility B (Five Year) Credit Agreement, dated as of October
25, 1995 (the "Credit Agreement"), among the Borrower, certain Lenders parties
thereto (the "Lenders"), and Citibank, N.A., as Agent for said Lenders.
This opinion is being delivered to you pursuant to Section
3.01(d) of the Credit Agreement. Capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Credit Agreement.
In rendering the opinions set forth herein, I have examined
and relied on originals or copies of the following:
(a) a counterpart executed by the Borrower of the Credit
Agreement;
(b) each of the executed Notes and each of the executed
Uncommitted Notes;
(c) copies of the Certificate of Incorporation and By-laws of
the Borrower;
(d) a certified copy of certain resolutions of the Board of
Directors of the Borrower;
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(e) certificates from public officials in the State of
Connecticut as to the good standing of the Borrower in the State of
Connecticut; and
(f) such other documents as I have deemed necessary or
appropriate as a basis for the opinions set forth below.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to me as originals, the conformity to original documents of
all documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to this
opinion which I did not independently establish or verify, I have relied upon
written statements and certificates of the Borrower and its officers and other
representatives and of public officials.
Unless otherwise indicated, references in this opinion to the
"Loan Documents" shall mean the documents listed in clauses (a) and (b) above.
In addition, references to (i) "Applicable Laws" shall mean the laws and
regulations of the States of Connecticut and New York and the United States of
America (including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System) which are applicable to the
transactions contemplated by the Loan Documents; (ii) the term "Governmental
Authorities" means any Connecticut, New York and federal executive, legislative,
judicial, administrative or regulatory body; (iii) the term "Applicable
Contracts" shall mean the agreements and instruments set forth in the index of
exhibits to the Borrower's Annual Report on Form 10-K for the year ended
, 19 filed with the Securities and Exchange Commission and (iv) the
term "Governmental Approval" means any consent, approval, license,
authorization or validation of, or filing, recording or registration with, any
Governmental Authority pursuant to any Applicable Law.
I am admitted to the bar in the States of Connecticut and New
York. This opinion is limited to the laws of the State of Connecticut, the State
of New York and the United States of America to the extent specified herein.
In rendering this opinion, I have assumed, with your consent,
that:
(a) the execution, delivery or performance by the Borrower of
the Loan Documents does not and will not conflict with, contravene,
violate or constitute a default under any rule, law or regulation to
which the Borrower is subject (other than applicable laws, orders and
decrees as to which I express my opinion in paragraph 5 herein) or any
agreement or instrument to which the Borrower or the Borrower's
property is subject (except and to the extent that I express my opinion
in paragraph 5 herein);
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(b) and no authorization, consent or other approval of, notice
to or filing with any court, governmental authority or regulatory body
(other than Governmental Approvals as to which I express my opinion in
paragraph 6 herein) is required to authorize or is required in
connection with the execution, delivery or performance by the Borrower
of any Loan Document or the transactions contemplated thereby.
My opinions are also subject to the following assumptions and
qualifications:
(a) the Credit Agreement constitutes the valid and binding
obligation of the Lenders and is enforceable against the Lenders in
accordance with its terms; and
(b) I express no opinion as to the effect on the opinions
herein stated of (i) the compliance or non-compliance of the Lenders
with any state, federal or other laws or regulations applicable to the
Lenders or (ii) the legal or regulatory status or the nature of the
business of the Lenders.
Based upon the foregoing and such investigations that I have deemed
necessary, and subject to the limitations, qualifications, exceptions and
assumptions set forth herein, I am of the opinion that:
1. The Borrower has been duly incorporated, is validly
existing and in good standing under the laws of the State of Connecticut.
2. The Borrower has the corporate power and corporate
authority to execute, deliver and perform all of its obligations under the Loan
Documents.
3. The execution and delivery of each Loan Document has been
duly authorized by all requisite corporate action on the part of the Borrower.
4. Each Loan Document has been duly executed and delivered by
the Borrower, constitutes a valid and binding obligation of the Borrower and is
enforceable against the Borrower in accordance with its terms, subject to the
following qualifications:
(i) enforcement may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws affecting creditors' rights
generally and by general principles of equity (regardless of
whether enforcement is sought in equity or at law);
(ii) I express no opinion as to the enforceability of
any rights to indemnification provided for in the Loan
Documents which may violate the public policy underlying any
law, rule or regulation (including any federal or state
securities law, rule or regulation); and
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(iii) I express no opinion as to the enforceability
of Section 8.05 of the Credit Agreement insofar as this
provision purports to authorize a Person who has purchased a
participation in Advances under the Credit Agreement to set
off, appropriate or apply any deposit or property or
indebtedness of the Borrower against any obligation of the
Borrower.
5. Neither the execution, delivery or performance by the
Borrower of the Loan Documents nor the compliance by the Borrower with the terms
and provisions thereof will conflict with, contravene, violate or constitute a
default under (i) any provision of any Applicable Contract or, to the best of my
knowledge, after due investigation, any other agreement or instrument to which
the Borrower or the Borrower's property is subject, (ii) any provision of any
Applicable Law, (iii) to the best of my knowledge, after due investigation, any
judicial or administrative order or decree of any Governmental Authority or (iv)
its Certificate of Incorporation and By-laws. As used in this paragraph, "due
investigation" means solely that, as to agreements and instruments, I have
interviewed the officers of the Borrower responsible for its financing
activities, and, as to orders and decrees, I have interviewed the lawyers under
my supervision.
6. Based on my review of Applicable Laws, but without my
having made any special investigation concerning any other law, rule or
regulation, no Governmental Approval which has not been obtained or taken and is
not in full force and effect, is required to authorize or is required in
connection with the execution, delivery or performance of any of the Loan
Documents by the Borrower.
7. The Borrower is not required to be registered under the
Investment Company Act of 1940, as amended.
This opinion is being furnished only to you and is solely for your
benefit in connection with the transactions contemplated by the Loan Documents
and is not to be used, circulated, quoted, relied upon or otherwise referred to
for any other purpose without my prior written consent.
Very truly yours,
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EXHIBIT I
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of October
25, 1995 (as amended or modified from time to time, the "Credit Agreement")
among The Xxxxxxx Works, a Connecticut corporation (the "Borrower"), the Lenders
(as defined in the Credit Agreement) and Citibank, N.A., as agent for the
Lenders (the "Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of the
date hereof (other than in respect of Uncommitted Advances and Uncommitted
Notes) equal to the percentage interest specified on Schedule 1 hereto of all
outstanding rights and obligations under the Credit Agreement (other than in
respect of Uncommitted Advances and Uncommitted Notes). After giving effect to
such sale and assignment, the Assignee's Commitment and the amount of the
Committed Advances owing to the Assignee will be as set forth on Schedule 1
hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or the performance or observance by the Borrower of
any of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto; and (iv) attaches the Committed Note held
by the Assignor and requests that the Agent exchange such Committed Note for a
new Committed Note payable to the order of the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto or new Committed Notes
payable to the order of the Assignee in an amount equal to the Commitment
assumed by the Assignee pursuant hereto and the Assignor in an amount equal to
the Commitment retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements referred
to in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit
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analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Agent, the Assignor 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 the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers and discretion as are reasonably incidental thereto; (v) agrees that it
will perform in accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it as a Lender;
(vi) agrees, for the benefit of the Borrower, that it will be bound by the terms
and provisions of the Credit Agreement to the same extent as if it were an
original party thereto and (vii) attaches any U.S. Internal Revenue Service
forms required under Section 8.09 of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance,
it will be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Committed Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make
all appropriate adjustments in payments under the Credit Agreement and the
Committed Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed counterpart of
this Assignment and Acceptance.
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IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
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Schedule 1
to
Assignment and Acceptance
Percentage interest assigned:
--------%
Assignee's Commitment:
$----------
Aggregate outstanding principal amount of Committed
$----------
Advances assigned:
Principal amount of Committed Note payable to Assignee:
$----------
Principal amount of Committed Note payable to Assignor:
$----------
Effective Date1: _______________, 199_
[NAME OF ASSIGNOR], as Assignor
By
-----------------------------
Name:
Title:
Dated: _______________, 199_
[NAME OF ASSIGNEE], as Assignee
By
-----------------------------
Name:
Title:
--------
1 This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
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Dated: _______________, 199_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved](2) this
__________ day of _______________, 199_
Citibank, N.A., as Agent
By
-------------------------
Name:
Title:
[Approved this __________ day
of _______________, 199_
The Xxxxxxx Works
By ](2)
---------------------------
Name:
Title:
--------
(2) Required if the Assignee is an Eligible Assignee solely by reason
of clause (iii) of the definition of "Eligible Assignee".
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