EXHIBIT 10.17
$400,000,000
364-DAY AMENDED AND RESTATED CREDIT AGREEMENT
among
DOW XXXXX & COMPANY, INC.,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
as Documentation Agent,
FLEET NATIONAL BANK,
as Syndication Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of June 29, 1999
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 12
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS 12
2.1 Revolving Credit Commitments 12
2.2 The Competitive Loans 14
2.3 Type of Revolving Credit Loans 17
2.4 Fees 17
2.5 Termination or Reduction of Loan Commitments 18
2.6 Repayment of Loans 18
2.7 Optional Prepayments 18
2.8 Interest Rate and Payment Dates 19
2.9 Computation of Interest and Fees 19
2.10 Inability to Determine Interest Rate 20
2.11 Pro Rata Borrowings and Payments 20
2.12 Taxes 21
2.13 Illegality 25
2.14 Requirements of Law 25
2.15 Indemnity 26
2.16 Extension of Termination Date 27
SECTION 3. REPRESENTATIONS AND WARRANTIES 27
.1 Financial Condition 28
3.2 No Change 28
3.3 Corporate Existence; Compliance with Law 28
3.4 Corporate Power;Authorization;Enforceable Obligations 28
3.5 No Legal Bar 29
3.6 No Material Litigation 29
3.7 No Default 29
3.8 Ownership of Property; Liens 29
3.9 No Burdensome Restrictions 29
3.10 Taxes 30
3.11 Federal Regulations 30
3.12 ERISA 30
3.13 Investment Company Act 30
3.14 Subsidiaries 31
3.15 Purpose of Loans 31
3.16 Year 2000 Matters 31
SECTION 4. CONDITIONS PRECEDENT 31
4.1 Conditions to Effectiveness 31
(a) Legal Opinion 31
(b) Officer's Certificate 31
(c) Secretary's Certificate 32
(d) Compliance 32
(e) Existing Credit Agreement 32
(f) Fees 32
(g) Additional Matters 32
4.2 Conditions to All Loans 32
(a) Representations and Warranties 32
(b) No Default or Event of Default 32
(c) Additional Conditions to Competitive Loans 33
SECTION 5. AFFIRMATIVE COVENANTS 33
5.1 Financial Statements 33
5.2 Certificates; Other Information 33
5.3 Payment of Obligations 34
5.4 Conduct of Business and Maintenance of Existence 34
5.5 Maintenance of Property; Insurance 34
5.6 Inspection of Property; Books and Records; Discussions 35
5.7 Notices 35
SECTION 6. NEGATIVE COVENANTS 36
6.1 Limitation on Liens 36
6.2 Limitation on Mergers and Sales of Assets 37
6.3 Maintenance of Ratio of Consolidated Total
Indebtedness to ConsolidatedTotal Capitalization 38
6.4 Maintenance of Ratio of Annualized Consolidated Cash flow 38
SECTION 7. EVENTS OF DEFAULT 38
SECTION 8. THE ADMINISTRATIVE AGENT 40
8.1 Appointment 40
8.2 Delegation of Duties 41
8.3 Exculpatory Provisions 41
8.4 Reliance by Administrative Agent 41
8.5 Notice of Default 42
8.6 Non-Reliance on Administrative Agent, Other Lenders 42
8.7 Indemnification 42
8.8 Administrative Agent in Its Individual Capacity 43
8.9 Successor Administrative Agent 43
8.10 Documentation Agent and Syndication Agent 43
SECTION 9. MISCELLANEOUS 43
9.1 Amendments and Waivers 43
9.2 Notices 44
9.3 No Waiver; Cumulative Remedies 45
9.4 Survival of Representations and Warranties 45
9.5 Payment of Expenses and Taxes 45
9.6 Successors and Assigns; Participations; Purchasing
Lenders 46
9.7 Adjustments; Set-off 50
9.8 Counterparts 50
9.9 Severability 50
9.10 Integration 51
9.11 Governing Law 51
9.12 Submission To Jurisdiction; Waivers 51
Page
Schedules
1.1 Loan Commitments 65
3.14 Subsidiaries 66
6.1 Existing Liens 67
9.2 Names and Addresses of Lenders 68
Exhibit
A Notice of Borrowing 71
B Competitive Loan Request 73
C Competitive Loan Offer 75
D Competitive Loan Confirmation 77
E Exemption Certificate 78
F Legal Opinion of Xxxxx X. Xxxxxxx, Esq., Executive
Vice President and GeneralCounsel 80
G Officer's Certificate 83
H Secretary's Certificate 84
I Competitive Loan Assignment 86
J Assignment and Acceptance 91
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June
29, 1999, among DOW XXXXX & COMPANY, INC., a Delaware corporation (the
"Company"), the several banks and other financial institutions or entities
from time to time parties to this Agreement (the "Lenders"), WESTDEUTSCHE
LANDESBANK GIROZENTRALE, as documentation agent (in such capacity, the
"Documentation Agent"), FLEET NATIONAL BANK, as syndication agent (in such
capacity, the"Syndication Agent"), and THE CHASE MANHATTAN BANK, as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company, the Administrative Agent and certain of the Lenders
are parties to the Revolving Credit Agreement dated as of November 16,
1994, as amended (the "Existing Credit Agreement"), and the parties hereto
wish to amend and restate the Existing Credit Agreement;
NOW, THEREFORE, the Existing Credit Agreement shall be amended and
restated to read in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms have
the following meanings:
"Absolute Rate Competitive Loan Request": any Competitive Loan Request
requesting the Competitive Loan Lenders to offer to make Competitive Loans
atan absolute rate (as opposed to a rate composed of the Applicable Index
Rate plus (or minus) a margin).
"Affiliate": any Person (other than a Subsidiary) which, directly or
indirectly, is in control of, is controlled by, or is under common control
with such Person. For purposes of this definition, control of a Person
shall mean the power, direct or indirect,
(i) to vote 10% or more of the securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the
direction of the management and policies of such Person whether by contract
or otherwise.
"Aggregate Loans": at a particular time, the sum of the then outstanding
principal amount of Revolving Credit Loans and Competitive Loans.
"Agreement": this Revolving Credit Agreement, as amended, supplemented or
modified from time to time.
"Alternate Base Rate": at any particular date, the highest of (a) the
Prime Rate, (b) 1/2 of 1% above the rate set forth for such date opposite
the caption "Federal Funds (Effective)" in the weekly statistical release
designated as "H.15 (510)," or any successor
publication, published by the Board of Governors of the Federal Reserve
System and (c)the Base C/D Rate in effect on such date plus 1%. "Base CD
Rate" shall mean a rate per annum equal to the following:
Three-Month Secondary CD Rate + Assessment Rate
1.00 - Reserve Percentage
"Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall not be a Business
Day, the next preceding Business Day) by the Board of Governors of the
Federal Reserve System through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current
practices of the Board of Governors of the Federal Reserve System, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City
time, on such day (or, if such day shall not be a Business Day, on the
next preceding Business Day) by the Administrative Agent from three New
York City negotiable certificate of deposit dealers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error)
that it is unable to ascertain the Base CD Rate or the rate set forth in
clause (b) above or both for any reason, including the inability or failure
of the Administrative Agent to obtain sufficient quotations in accordance
with the terms thereof, the Alternate Base Rate shall be determined without
regard to clause (b) or (c), or both, of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist. Any change in the Alternate Base Rate due to
a change in the Prime Rate, the Three-Month Secondary CD Rate or the rate
set forth in clause (b) shall be effective on the effective day of such
change in the such rate.
"Alternate Base Rate Loans": Revolving Credit Loans at
such time as they are made and/or being maintained at a rate of interest
based upon the Alternate Base Rate.
"Annualized Consolidated Cash Flow": as at the last day of
any fiscal quarter of the Company the Consolidated Cash Flow for the period
of four consecutive fiscal quarters ending on such day.
"Annualized Consolidated Interest Expense": as at the last
day of any fiscal quarter of the Company the Consolidated Interest Expense
for the period of four consecutive fiscal quarters ending on such day.
"Applicable Facility Fee Percentage": on any date, a rate
per annum equal to 0.06%.
"Applicable Index Rate": in respect of any Competitive Loan
requested pursuant to an Index Rate Competitive Loan Request, the Eurodollar
Rate applicable to the Interest Period for such Competitive Loan.
"Applicable Margin": on any date with respect to the Loans
comprising any Eurodollar Loans, a rate per annum equal to 0.19%.
"Assessment Rate": for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance
Fund maintained by the Federal Deposit Insurance Corporation (the "FDIC")
classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning
of 12 C.F.R. 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits
at offices of such institution in the United States.
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit J.
"Available Loan Commitment": as to any Lender, at a
particular time, an amount equal to such Lender's Commitment Percentage
multiplied by the difference between (a) the amount of the Loan
Commitments at such time and (b) the Aggregate Loans at such time;
collectively, as to all the Lenders, the "Available Loan Commitments."
"Board": the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrowing Date": in respect of any Revolving Credit Loan,
the date on which such Revolving Credit Loan is made.
"Business Day": a day other than a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to close.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of capital stock
of a corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options to
purchase any of the foregoing.
"Closing Date": the date on which the conditions in
Section 4 are satisfied in full, which shall be a Business Day which is on
or before the date of the initial Loans.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment Percentage": as to any Lender, the percentage
of the aggregate Loan Commitments constituted by such Lender's Loan
Commitment, set forth opposite such Lender's name on Schedule 1.1 hereto.
"Commitment Period": the period from and including the
Closing Date to but not including the Maturity Date or such earlier date
as the Loan Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the
meaning of Section 414(b) or (c) of the Code.
"Competitive Loan": each Competitive Loan made pursuant
to subsection 2.2; the aggregate amount advanced by a Competitive Loan
Lender pursuant to subsection 2.2 on each Competitive Loan Date shall
constitute one or more Competitive Loans, as specified by such Competitive
Loan Lender pursuant to subsection 2.2(b)(vi).
"Competitive Loan Assignees": as defined in subsection
9.6(c).
"Competitive Loan Assignment": a Competitive Loan
Assignment, substantially in the form of Exhibit I.
"Competitive Loan Confirmation": each confirmation by the
Company of its acceptance of Competitive Loan Offers, which Competitive
Loan Confirmation shall be substantially in the form of Exhibit D and
shall be delivered to the Administrative Agent in writing, by telex or by
facsimile transmission.
"Competitive Loan Date": each date on which a Competitive
Loan is made pursuant to subsection 2.2.
"Competitive Loan Lenders": Lenders from time to time
offering Competitive Loans.
"Competitive Loan Offer": each offer by a Competitive
Loan Lender to make Competitive Loans pursuant to a Competitive Loan
Request, which Competitive Loan Offer shall contain the information
specified in Exhibit C and shall be delivered to the Administrative Agent
by telephone, immediately confirmed by telex or facsimile transmission.
"Competitive Loan Request": each request by the Company
for Competitive Loan Lenders to submit bids to make Competitive Loans,
which shall contain the information in respect of such requested Competitive
Loans specified in Exhibit B and shall be delivered to the Administrative
Agent in writing, by telex or facsimile transmission, or by telephone,
immediately confirmed by telex or facsimile transmission.
"Consolidated Cash Flow": for any period, Consolidated
Net Income of the Company and its Subsidiaries for such period plus the
aggregate amounts deducted in determining such Consolidated Net Income
in respect of (i) Consolidated Interest Expense, (ii) amortization
expenses, (iii) depreciation expenses and (iv) income taxes, each of
clauses (i), (ii), (iii)and (iv) determined in accordance with GAAP, but
after deducting in the calculation thereof, income representing equity in
the earnings of Affiliates not received in cash or, as the
case may be, after restoring thereto deductions representing equity in
the losses of Affiliates for which neither the Company nor any of its
Subsidiaries is liable.
"Consolidated Interest Expense": for any period, interest
expense of the Company and its Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Income": for any period, the
consolidated net income (or deficit) of the Company and its Subsidiaries
for such period (taken as a cumulative whole), determined in accordance
with GAAP.
"Consolidated Net Worth": at a particular date, all
amounts which would be included under shareholders' equity on a
consolidated balance sheet of the Company and its Subsidiaries at such
date, determined in accordance with GAAP.
"Consolidated Total Capitalization": at a particular date,
the sum of Consolidated Net Worth and Consolidated Total Indebtedness.
"Consolidated Total Indebtedness": at a particular date,
all items which would, in conformity with GAAP, be classified as
Indebtedness on a consolidated balance sheet of the Company and its
Subsidiaries as at such date, but in any event including without any
duplication (a) indebtedness arising under acceptance facilities and the
face amount of all letters of credit issued for the account of the Company
or any Subsidiary and all drafts drawn thereunder, (b) all Indebtedness
secured by any Lien on any property owned by the Company or any Subsidiary
even though the Company or such Subsidiary has not assumed or otherwise
become liable for the payment thereof and (c) all Guarantee Obligations of
the Company and its Subsidiaries in respect of Indebtedness of other
Persons.
"Continuing Directors": the directors of the Company on
the Closing Date and each other director, if, in each case, such other
director's nomination for election to the board of directors of the
Company is recommended by at least a majority of the then Continuing
Directors.
"Contractual Obligation": as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Decision Date": as defined in subsection 2.16(b).
"Default": any of the events specified in Section 7,
whether or not any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Documentation Agent": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the maximum
rates (expressed as a decimal fraction) of reserve requirements in effect
on such day (including basic, supplemental, marginal and emergency reserves
under any regulations of the Board or other governmental Authority having
jurisdiction with respect thereto) dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank of
the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, the rate per annum
determined on the basis of the rate for deposits in Dollars for a period
equal to such Interest Period commencing on the first day of such Interest
Period appearing on Page 3750 of the Telerate screen as of 11:00 A.M.,
London time, two Business Days prior to the beginning of such Interest
Period. In the event that such rate does not appear on Page 3750 of the
Telerate screen (or otherwise on such screen), the "Eurodollar Base Rate"
shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by
the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days
prior to the beginning of such Interest Period in the inter-bank
eurodollar market where its eurodollar and foreign currency and exchange
operations are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable
to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum
determined for such day in accordance with the following formula (rounded
upward to the nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in
Section 7, provided that any requirement for the giving of notice, the
lapse of time, or both, or any other condition, event or act has been
satisfied.
"Existing Credit Agreement": as defined in the recitals
hereto.
"Facility Fee": as defined in subsection 2.4;
collectively, the "Facility Fees."
"Financing Lease": (a) any lease of property, real or
personal, the then present value of the minimum rental commitment under
which is required to be capitalized on a consolidated balance sheet of the
Company and its Subsidiaries in accordance with GAAP, and (b) any other
such lease to the extent that the obligations thereunder are capitalized
on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the
United States of America in effect from time to time except that for
purposes of subsections 6.3 and 6.4, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those
used in the preparation of the most recent audited financial statements
delivered pursuant to subsection 3.1.
"Governmental Authority": any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Guarantee Obligation": as to any Person, any obligation
of such Person guaranteeing or in effect guaranteeing 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 (a) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (b) to
advance or supply funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency
of the primary obligor, (c) 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 (d) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the Company in good faith.
"Indebtedness": of a Person, at a particular date, the
sum (without duplication) at such date of (a) indebtedness for borrowed
money (including, withoutlimitation, any indebtedness evidenced by any
note, bond, debenture or other instrument)or for the deferred purchase
price of property or services in respect of which such Person is liable,
as obligor, other than accounts payable for the deferred purchase price
of property or services incurred in the ordinary course of business and
which are not in excess of 90 days past the invoice or billing date, or
if in excess of 90 days past the invoice or billing date are being
contested in good faith by appropriate actions or
or proceedings, (b)obligations of such Person under Financing Leases and
(c) any obligations of such Person in respect of letters of credit,
acceptances, or similar obligations issued or created for the account of
such Person.
"Index Rate Competitive Loan Request": any Competitive
Loan Request requesting the Competitive Loan Lenders to offer to make
Competitive Loans at an interest rate equal to the Applicable Index Rate
plus (or minus) a margin.
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is Insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the last
day of each March, June, September and December, commencing on the first
of such days to occur after Alternate Base Rate Loans are made, (b) as to
any Eurodollar Loan in respect of which the Company has selected an
Interest Period of one, two or three months, the last day of such Interest
Period and (c) as to any Eurodollar Loan in respect of which the Company
has selected a longer Interest Period than the periods described in clause
(b) above, the last day of each March, June, September and December falling
within such Interest Period and the last day of such Interest Period.
"Interest Period": (a) with respect to any Eurodollar
Loan, the period commencing on the Borrowing Date with respect to such
Eurodollar Loan and ending one, two, three or six months thereafter, as
selected by the Company in its notice of borrowing as provided in
subsection 2.1(d);
(b) with respect to any Alternate Base Rate Loan, the
period commencing on the Borrowing Date with respect to such Alternate
Base Rate Loan and ending on the earliest to occur of the last day of
March, June, September or December following such Borrowing Date;
(c) with respect to any Competitive Loan made pursuant
to a Competitive Loan Request, the period commencing on the Competitive
Loan Date with respect to such Competitive Loan and ending on the date
not less than 7 nor more than 180 days thereafter, as specified by the
Company in such Competitive Loan Request; provided that the foregoing
provisions are subject to the following:
(A) if any Interest Period pertaining to a Eurodollar
Loan or a Competitive Loan made pursuant to an Index Rate Competitive
Loan Request would otherwise end on a day which is not a Working Day,
that Interest Period shall be extended to the next succeeding Working
Day unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Working Day;
(B) any Interest Period pertaining to a Eurodollar Loan
that begins on the last Working 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 end on the last Working Day of a
calendar month;
(C) if any Interest Period pertaining to an Alternate
Base Rate Loan or a Competitive Loan made pursuant to an Absolute Rate
Competitive Loan Request would otherwise end on a day which is not a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day;
(D) any Interest Period that would otherwise extend beyond
the Maturity Date shall end on such Maturity Date; and
(E) the Company shall select Interest Periods so as not to
require a prepayment of any Eurodollar Loan during an Interest Period for
such Loan.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any Financing Lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in respect of any of the foregoing).
"Loan" and "Loans": the collective reference to the
Revolving Credit Loans and the Competitive Loans.
"Loan Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Credit Loans in an aggregate
principal amount not to exceed the amount set forth under the heading
"Loan Commitment" opposite such Lender's name on Schedule 1.1 or in the
Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof (including, without limitation, pursuant to the provisions of the
second sentence of subsection 2.1(a)). The original aggregate amount of
the Loan Commitments is $400,000,000.
"Margin Stock": "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
"Maturity Date": at any time, the date that is one year
after the Termination Date then in effect.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Notes": the collective reference to any promissory notes
evidencing Loans.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to,
this Agreement or any Note.
"Participants": as defined in subsection 9.6(b).
"Payment Sharing Notice": a written notice from the Company,
or any Lender, informing the Administrative Agent that an Event of Default
has occurred and is continuing and directing the Administrative Agent to
allocate payments thereafter received from the Company in accordance with
subsection 2.11(c).
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at any particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Company or a
Commonly Controlled Entity is (or, if such plan were terminated at such
time, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate": the rate of interest publicly announced by
The Chase Manhattan Bank in New York, New York from time to time as its
prime rate. The Prime Rate is not intended to be the lowest rate of
interest charged by The Chase Manhattan Bank in connection with extensions
of credit to debtors.
"Purchasing Lenders": as defined in subsection 9.6(d).
"Ratings": the ratings of Xxxxx'x and S&P applicable to
the Company's senior unsecured non-credit-enhanced long-term debt
obligations.
"Refunding Borrowing": a borrowing of Revolving Credit
Loans which, after application of the proceeds thereof, results in no net
increase in the aggregate outstanding principal amount of Revolving Credit
Loans made by any Lender.
"Register": as defined in subsection 9.6(e).
"Reorganization": with respect to any Multiemployer Plan,
the condition that such Plan is in reorganization within the meaning of
such term as used in Section 4245 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Required Lenders": at any date, Lenders having Loan
Commitments aggregating over one-half of the total Loan Commitments (or,
at any time the Loan Commitments have expired or terminated, the Lenders
having over one-half of the total Loans then outstanding).
"Requirement of Law": as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing documents
of such Person, and any law, treaty, rule or regulation or determination of
an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or
to which such Person or any of its property is subject.
"Reserve Percentage": for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal Reserve System (or any successor),
for determining the maximum reserve requirement for
a Depository Institution (as defined in Regulation D of such Board as in
effect from time to time) in respect of new non-personal time deposits in
Dollars having a maturity of 30 days or more.
"Responsible Officer": the Chief Executive Officer or the
President of the Company or, with respect to financial matters, the Chief
Financial Officer of the Company.
"Revolving Credit Loans": Loans made pursuant to
subsection 2.1;individually a "Revolving Credit Loan."
"S&P": Standard & Poor's Corporation.
"Single Employer Plan": any Plan which is not a
Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of
directors or other managers of such corporation, partnership, limited
liability company or other entity are at the time owned, or the management
of which is otherwise controlled, directly or indirectly through one or
more intermediaries, or both, by such Person. Unless
otherwise qualified, all references to a "Subsidiary" or to Subsidiaries"
in this Agreement shall refer to a Subsidiary or Subsidiaries of the
Company.
"Syndication Agent": as defined in the preamble hereto.
"Termination Date": June 27, 2000 or such earlier date on
which the Loan Commitments are terminated, or such later date to which the
Termination Date shall be extended pursuant to subsection 2.16 hereof.
"Transfer Effective Date": as defined in each Assignment
and Acceptance.
"Transferees": as defined in subsection 9.6(g).
"Type": as to any Revolving Credit Loan, its nature as an
Alternate Base Rate Loan or a Eurodollar Loan.
"Utilization Fee": as defined in subsection 2.4(b).
"Working Day": any day on which dealings in foreign
currencies and exchange between banks may be carried on in London, England
and in New York, New York.
1.2 Other Definitional Provisions.
(a) Unless otherwise specified herein, all terms defined
in this Agreement shall have the defined meanings when used in any Notes
or any certificate or otherdocument made or delivered pursuant hereto.
(b) As used herein and in any Notes, and any certificate
or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to the Company and its Subsidiaries not defined
in subsection 1.1 and accounting terms partly defined in
subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under GAAP, (ii) the words "include," "includes"
and "including" shall be deemed to be followed by the phrase "without
limitation," (iii) the word "incur" shall be construed to mean incur,
create, issue, assume or become liable in respect of (and the words
"incurred" and "incurrence" shall have correlative meanings), and (iv)
the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Capital Stock, securities,
revenues, accounts, leasehold interests and contract rights.
(c) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of
this Agreement, and section, subsection, schedule and exhibit references
are to this Agreement unless otherwise specified.
SECTION 2. AMOUNT AND TERMS OF LOAN COMMITMENTS
2.1 Revolving Credit Commitments. (a) Subject to the
terms and conditions hereof, each Lender severally agrees to make
revolving credit loans (individually a "Revolving Credit Loan") to the
Company from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed the amount of
such Lender's Loan Commitment; provided that no Revolving Credit Loan
shall be made hereunder which would result in the Aggregate Loans
outstanding hereunder being in excess of the Loan Commitments then in
effect. During the Commitment Period the Company may use the Loan
Commitments by borrowing, prepaying the Revolving Credit Loans in whole
or in part, and re-borrowing, all in accordance with the terms and
conditions hereof, provided, that the Loan Commitments shall be reduced
on the Termination Date to an amount equal to the amount of the
Aggregate Loans then outstanding and, if the Aggregate Loans shall at
any time or from time to time be reduced thereafter, the Loan Commitments
shall be reduced pro rata simultaneously by an amount equal to such
reduction in the Aggregate Loans, and provided, further, that on and
after the Termination Date, no Revolving Credit Loans may be made which
are not Refunding Borrowings or Revolving Credit Loans the proceeds of
which are used to repay maturing Competitive Loans.
(b) No Eurodollar Loan shall be made after the date that
is 30 days prior to the Maturity Date.
(c) Each Revolving Credit Loan shall finally mature on
the Maturity Date. Each Revolving Credit Loan shall bear interest on the
unpaid principal amount thereof from time to time outstanding at the
applicable interest rate per annum determined as provided in, and shall
be payable on the dates specified in, subsections 2.8 and 2.9.
(d) The Company may borrow under the Loan Commitments
during the Commitment Period on any Working Day if the borrowing is a
Eurodollar Loan or on any Business Day if the borrowing is an Alternate
Base Rate Loan; provided that the Company shall give the Administrative
Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (a) 3
Working Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, and (b) 1 Business Day prior to the requested Borrowing
Date, in the case of Alternate Base Rate). Each such notice shall be
given in writing, by telex or by facsimile transmission substantially
in the form of Exhibit A (with appropriate insertions) or shall be
given by telephone (specifying the information set forth in Exhibit A)
promptly confirmed by notice given in writing, by telex or by
facsimile transmission substantially in the form of Exhibit A
(with appropriate insertions). Each borrowing pursuant to the Loan
Commitments shall be in an aggregate principal amount equal to (a) the
lesser of, in the case of Alternate Base Rate Loans, (i) $10,000,000 or
a whole multiple of $1,000,000 in excess thereof, and (ii) the Available
Loan Commitments and (b) in the case of Eurodollar Loans, $10,000,000
or a whole multiple of $1,000,000 in excess thereof. Upon receipt of
such notice from the Company the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its
share of each borrowing available to the Administrative Agent for the
account of the Company at the office of the Administrative Agent set forth
in subsection 9.2 at or before 11:00 A.M. on the Borrowing Date requested
by the Company in funds immediately available to the Administrative Agent
as the Administrative Agent may direct. The proceeds of all such Loans
will then be made available to the Company
by the Administrative Agent at the office of the Administrative Agent
specified in subsection 9.2 by crediting the account of the Company on
the books of such office of the Administrative Agent with the aggregate
of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
(e) If any Lender makes a Revolving Credit Loan on a day
on which the Company is to repay all or any part of any outstanding
Revolving Credit Loan from such Lender, such Lender shall apply the
proceeds of the requested Revolving Credit Loan to make such repayment,
and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made available by
such Lender to the Administrative Agent as provided in paragraph (c)
above, or remitted by the Company to the Administrative Agent for
the account of such Lender as provided in subsection 2.6, as the case
may be.
2.2 The Competitive Loans. (a) The Lenders may make
Competitive Loans to the Company from time to time on any Business Day
(in the case of Competitive Loans made pursuant to an Absolute Rate
Competitive Loan Request) or any Working Day (in the case of Competitive
Loans made pursuant to an Index Rate Competitive Loan Request) during the
period from the Closing Date until the date occurring 14 days prior to the
Maturity Date in the manner set forth in this subsection 2.2 and in
amounts such that the Aggregate Loans at any time outstanding shall not
exceed the aggregate amount of the Loan Commitments at such time; provided,
however, that the aggregate principal amount of the
outstanding Competitive Loans of a Lender may (but shall not be required
to) exceed its Loan Commitment.
(b) (i) The Company shall request Competitive Loans by
delivering a Competitive Loan Request to the Administrative Agent, not
later than 12:00 Noon(New York City time) four Working Days prior to the
proposed Competitive Loan Date (in the case of an Index Rate Competitive
Loan Request), and not later than 10:00 A.M. (New York City time) one
Business Day prior to the proposed Competitive Loan Date (in the case
of an Absolute Rate Competitive Loan Request); provided that (i) an
Index Rate Competitive Loan request shall not be made until at least
one Business Day has passed since the most recent Competitive Loan Date
and (ii) an Absolute Rate Competitive Loan Request shall not be made
until at least four Business Days have passed since the most recent
Competitive Loan Date. Each Competitive Loan Request may solicit bids
for Competitive Loans in an aggregate principal amount of $10,000,000
or an integral multiple in excess of $1,000,000 thereof and for not more
than three alternative maturity dates for such Competitive Loans. The
maturity date for each Competitive Loan shall be not less than 7 days
nor more than 180 days after the Competitive Loan Date therefor (and in
any event not after the Maturity Date and in any event subject to the
proviso to the definition of "Interest Period"). The Administrative Agent
shall promptly notify each Competitive Loan Lender by promptly notify each
Competitive Loan Lender by telex or facsimile transmission
of the contents of each Competitive Loan Request received by it.
(ii) In the case of an Index Rate Competitive Loan Request, upon receipt
of notice from the Administrative Agent of the contents of such
Competitive Loan Request,any Competitive Loan Lender that elects, in its
sole discretion, to do so, shall irrevocably offer to make one or more
Competitive Loans at the Applicable Index Rate plus or minus a margin for
each such Competitive Loan determined by such Competitive Loan Lender in
its sole discretion. Any such irrevocable offer shall be
made by delivering a Competitive Loan Offer to the Administrative Agent,
before 10:30 A.M. (New York City time) three Working Days before the
proposed Competitive Loan Date, setting forth the maximum amount of
Competitive Loans for each maturity date, and the aggregate maximum amount
for all maturity dates, which such Lender would be willing to make (which
amounts may, subject to subsection 2.2(a), exceed such Competitive Loan
Lender's Loan Commitment) and the margin above or below the Applicable
Index Rate at which such Competitive Loan Lender is willing to make each
such Competitive Loan; the Administrative Agent shall advise the Company
before 11:15 A.M. (New York City time) three
Working Days before the proposed Competitive Loan Date, of the contents of
each such Competitive Loan Offer received by it. If the Administrative
Agent in its capacity as a Competitive Loan Lender shall, in its sole
discretion, elect to make any such offer, it shall advise the Company of
the contents of its Competitive Loan Offer before 10:15 A.M. (New York
City time) three Working Days before the proposed Competitive Loan Date.
(iii) In the case of an Absolute Rate Competitive Loan
Request, upon receipt of notice from the Administrative Agent of the
contents of such Competitive Loan Request, any Competitive Loan Lender
that elects, in its sole discretion, to do so, shall irrevocably
offer to make one or more Competitive Loans at a rate or rates of
interest for each such Competitive Loan determined by such Competitive
Loan Lender in its sole discretion. Any such irrevocable offer shall
be made by delivering a Competitive Loan Offer to the Administrative
Agent, before 9:30 A.M. (New York City time) on the proposed Competitive
Loan Date, setting forth the maximum amount of Competitive Loans for each
maturity date, and the aggregate maximum amount for all maturity dates,
which such Competitive Loan Lender would be willing to make (which amounts
may, subject to subsection 2.2(a), exceed such Competitive Loan Lender's
Loan Commitment) and the rate or rates of interest at which such
Competitive Loan Lender is willing to make each such Company before 10:15
A.M. (New York City time) on the proposed Competitive Loan Date of the
contents of each such Competitive Loan Offer received by it. If the
Administrative Agent in its capacity as a Competitive Loan Lender shall,
in its sole discretion, elect to make any such offer, it shall advise the
Company of the contents of its Competitive Loan Offer before 9:15 A.M.
(New York City time) on the proposed Competitive Loan Date.
(iv) The Company shall before 11:30 A.M. (New York City
time) three Working Days before the proposed Competitive Loan Date (in
the case of Competitive Loans requested by an Index Rate Competitive
requested by an Index Rate Competitive Loan Request) and before 10:30 A.M.
(New York City time) on the proposed Competitive Loan Date (in the case of
Competitive Loans requested by an Absolute Rate Competitive Loan Request)
either, in its absolute discretion:
(A) cancel such Competitive Loan Request by giving the
Administrative Agent telephone notice to that effect, or
(B) accept one or more of the offers made by any
Competitive Loan Lender or Competitive Loan Lenders pursuant to clause
(ii) or clause (iii) above, as the case may be, by giving telephone notice
to the Administrative Agent (immediately confirmed by delivery to the
Administrative Agent of a Competitive Loan Confirmation) of the amount
of Competitive Loans for each relevant maturity date to be made by each
Competitive Loan Lender (which amount for each such maturity date shall
be equal to or less than the maximum amount for such
maturity date specified in the Competitive Loan Offer of such Competitive
Loan Lender, and for all maturity dates included in such Competitive
Loan Offer shall be equal to or less than the aggregate maximum amount
specified in such Competitive Loan Offer for all such
maturity dates) and reject any remaining offers made by Competitive
Loan Lenders pursuant to clause (ii) or clause (iii) above, as the case
may be; provided, however, that (x) the Company may not accept offers
for Competitive Loans for any maturity date in an aggregate principal
amount in excess of the maximum principal amount requested in the
related Competitive Loan Request, (y) if the Company accepts any of
such offers, it must accept offers strictly based upon pricing for
such relevant maturity date and no other criteria whatsoever and (z)
if two or more Competitive Loan Lenders submit offers for any maturity
date at identical pricing and the Company accepts any of such offers
but does not wish to borrow the total amount offered by such
Competitive Loan Lenders with such identical pricing, the Company
shall accept offers from all of such Competitive Loan xxxxxx in
amounts allocated among them pro rata according to the amounts
offered by such Competitive Loan Lenders (or as nearly pro rata as
shall be practicable after giving effect to the requirement that any
Competitive Loans made by a Competitive Loan Lender on a Competitive
Loan Date for each relevant maturity date shall be in a principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof, it being agreed that to the extent that it is impossible to
make allocations in accordance with the provisions of this clause (B)
such allocations shall be made in accordance with the instructions of
the Company.
(v) If the Company notifies the Administrative Agent that
a Competitive Loan Request is cancelled pursuant to clause (iv) (A) above,
the Administrative Agentshall give prompt telephone notice thereof to the
Competitive Loan Lenders, and the Competitive Loans requested thereby
shall not be made.
(vi) If the Company accepts pursuant to clause (iv) (B)
above one or more of the offers made by any Competitive Loan Lender or
Competitive Loan Lenders, the Administrative Agent shall promptly notify
each Competitive Loan Lender which has made such an offer, of the aggregate
amount of such Competitive Loans to be made on such Competitive Loan Date
for each maturity date and of the acceptance or rejection of any offers to
make such Competitive Loans made by such Competitive Loan Lender. Each
Competitive Loan Lender which is
to make a Competitive Loan shall, before 12:00 Noon (New York City time)
on the Competitive Loan Date specified in the Competitive Loan Request
applicable thereto, make available to the Administrative Agent at its
office set forth in subsection 9.2 the amount of Competitive Loans to
be made by such Competitive Loan Lender, in immediately available funds.
The Administrative Agent will make such funds available to the Company
as soon as practicable on such date at the Administrative Agent's
aforesaid address. As soon as practicable after each Competitive Loan
Date, the Administrative Agent shall notify each Lender of the aggregate
amount of Competitive Loans advanced on such Competitive Loan Date and the
respective maturity dates thereof.
(c) Within the limits and on the conditions set forth in
this subsection 2.2,the Company may from time to time borrow under this
subsection 2.2, repay pursuant to paragraph (d) below, and re-borrow under
this subsection 2.2.
(d) The Company shall repay to the Administrative Agent
for the account of each Competitive Loan Lender which has made a
Competitive Loan (or the Competitive Loan Assignee in respect thereof, as
the case may be) on the maturity date of each Competitive Loan (such
maturity date being that specified by the Company for repayment of such
Competitive Loan in the related Competitive Loan Request) the then unpaid
principal amount of such Competitive Loan. The Company shall not have
the right to prepay any principal amount of any Competitive Loan.
(e) The Company shall pay interest on the unpaid
principal amount of each Competitive Loan from the Competitive Loan Date
to the stated maturity date thereof, at the rate of interest determined
pursuant to paragraph (b) above (calculated on the basis of a 360 day year
for actual days elapsed), payable on the interest payment date or dates
specified by the Company for such Competitive Loan in the related
Competitive Loan Request. If all or a portion of the principal amount of
any Competitive Loan shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue principal amount
shall, without limiting any rights of any Lender under this Agreement,
bear interest from the date on which such payment was due at a rate per
annum which is 2% above the rate which would otherwise be applicable
thereto until the scheduled maturity date with respect thereto, and for
each day thereafter at a rate per annum which is 2% above the Alternate
Base Rate until paid in full (as well after as before judgment).
2.3 Type of Revolving Credit Loans. The Revolving Credit
Loans may be (i) Eurodollar Loans, (ii) Alternate Base Rate Loans or (iii)
a combination thereof. Each borrowing of Revolving Credit Loans shall be
in an aggregate principal amount of $10,000,000 or a whole multiple of
$1,000,000 in excess thereof.
2.4 Fees. (a) The Company agrees to pay, in immediately
available funds,to the Administrative Agent for the account of each Lender
a facility fee (a "Facility Fee") for the period from and including the
date of this Agreement to, but excluding, the Maturity Date, payable
quarterly in arrears on the last day of each March, June, September and
December and on the Maturity Date, (or such earlier
date on which the Loan Commitments shall terminate and the Loans and all
interest, fees and other amounts in respect thereof shall have been paid
in full), commencing on the first of such dates to occur after the date
hereof, at a rate per annum equal to the Applicable Facility Fee
Percentage from time to time in effect on each Lender's portion of the
daily average Loan Commitments in effect, whether used or unused, during
the period for which payment is being made.
(b) The Company agrees to pay to the Administrative Agent
for the account of each Lender a fee (the "Utilization Fee") based upon the
average daily amount of the outstanding Loans at a rate per annum equal to
0.05%, when and for as long as the aggregate outstanding principal amount
of the Loans exceeds 50% of (i) until the Termination Date, the aggregate
amount of the Loan Commitments and (ii) from the Termination Date through
the Maturity Date, the aggregate amount of the Loan Commitments in effect
on the Termination Date immediately prior to giving effect to any reduction
thereof required to occur on such date pursuant to the first proviso of the
second sentence of subsection 2.1(a). The Utilization Fee shall be payable
quarterly in arrears on the last day of each March, June, September and
December, commencing on the first of such dates to occur after the date
hereof, and on the Maturity Date (or such earlier date on which the Loan
Commitments shall terminate and the Loans and all interest, fees and other
amounts in respect thereof shall have been paid in full).
2.5 Termination or Reduction of Loan Commitments. The
Company shallhave the right, upon not less than 5 Business Days' notice
to the Administrative Agent, to terminate the Loan Commitments or, from
time to time, to reduce pro rata the amount of the Loan Commitments,
provided that (a) any such reduction shall be accompanied by prepayment
of the Revolving Credit Loans, together with accrued interest on the
amount so prepaid to the date of such prepayment, to the extent, if any,
that the amount of the Revolving Credit Loans then outstanding exceeds
the amount of the Loan Commitments as then reduced, (b) any such
termination of the Loan Commitments shall be accompanied by prepayment
in full of the Revolving Credit Loans then outstanding, together with
accrued interest thereon to the date of such prepayment, and the payment
of any unpaid Facility Fee or Utilization Fee then accrued hereunder and
(c) any termination of the Loan Commitments while Eurodollar Loans are
outstanding and any reduction of the aggregate amount of the Loan
Commitments that reduces the amount of the Loan Commitments below the
principal amount of the Eurodollar Loans then outstanding may be made
only on the last day of the respective Interest Periods for such
Eurodollar Loans. Any such reduction shall be in an amount of $10,000,000
or a whole multiple thereof, and shall reduce permanently the amount of
the Loan Commitments then in effect.
2.6 Repayment of Loans. Subject to subsection 2.1(e),
the Company will pay to the Administrative Agent for the account of each
Lender the unpaid principal amount of each Revolving Credit Loan made by
such Lender, plus all interest accrued thereon, on the last day of the
Interest Period applicable thereto.
2.7 Optional Prepayments. (a) The Company may on the last
day of the relevant Interest Period if the Loans to be prepaid are in
whole or in part Eurodollar Loans, or at any time and from time to time
if the Loans to be prepaid are Alternate Base Rate Loans, prepay the
Revolving Credit Loans, in whole or in part, without premium or penalty,
upon at least three Business Days' (in the case of Eurodollar Loans) or
one Business Day's (in the case of Alternate Base Rate Loans) irrevocable
notice to the Administrative Agent, specifying the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans or Alternate
Base Rate Loans or a combination thereof, and if of a combination thereof,
the amount of prepayment allocable to each. Upon receipt of such notice
the Administrative Agent shall promptly notify each Lender thereof.
If such notice is given, the Company shall make such prepayment, and
the payment amount specified in such notice shall be due and payable on
the date specified therein. Partial prepayments shall be in an aggregate
principal amount of $10,000,000 or a whole multiple thereof, and may
only be made if, after giving effect thereto, subsection 2.7(c) shall
not have been contravened.
(b) The Company may not prepay Competitive Loans.
(c) All payments and prepayments hereunder shall be in
such amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of the Revolving Credit
Loans which are Eurodollar Loans having the same Interest Period shall
not be less than $10,000,000.
2.8 Interest Rate and Payment Dates. (a) The Eurodollar
Loans shall bear interest for each Interest Period with respect thereto on
the unpaid principal amount thereof at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period plus the Applicable
Margin.
(b) Alternate Base Rate Loans shall bear interest for the
period from and including the date thereof until maturity on the unpaid
principal amount thereof at a rate per annum equal to the Alternate Base
Rate.
(c) (i) If all or a portion of the principal amount of
any Loan shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest at
a rate per annum equal to the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this subsection 2.8 plus
2%, and (ii) if all or a portion of any interest payable on any Loan or
any commitment fee or other amount payable hereunder shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the
rate then applicable to Alternate Base Rate Loans plus 2%, in each case,
with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before
judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date,provided that interest accruing pursuant to paragraph
(c) of this subsection 2.8 shall be payable from time to time on demand.
2.9 Computation of Interest and Fees. (a) All interest
in respect of Alternate Base Rate Loans shall be calculated on the basis
of a 360 day year for the actual days elapsed, except where the applicable
interest rate for such Loan is the Prime Rate, in which case the rate per
annum shall be computed on the basis of a 365 (or 366 as the case
may be) day year for the actual days elapsed. Facility Fees, Utilization
Fees and interest in respect of Eurodollar Loans shall be calculated on
the basis of a 360 day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Company
and the Lenders of each determination of a Eurodollar Rate. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base
Rate, the Applicable Margin or the Reserve Percentage shall become
effective as of the opening of business on the day on which such change
in the Alternate Base Rate is announced or such Applicable Margin
changes as provided herein or such change in the Reserve Percentage shall
become effective. The Administrative Agent shall as soon as practicable
notify the Company and the Lenders of the effective date and the amount
of each such change.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Company and the Lenders in the absence
of manifest error. The Administrative Agent shall, at the request of the
Company, deliver to the Company a statement showing the quotations used
by the Administrative Agent in determining any interest rate pursuant to
subsection 2.8 (a) or (c).
2.10 Inability to Determine Interest Rate. (a) In the
event that the administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that by
reason of circumstances affecting the interbank eurodollar market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for any requested Interest Period with respect to proposed Loans that
the Company has requested be made as Eurodollar Loans, the Administrative
Agent shall forthwith give telex or facsimile notice of such determination,
confirmed in writing, to the Company and the Lenders at least one day prior
to the requested Borrowing Date for such Eurodollar Loans. If such notice
is given any requested Eurodollar Loans shall be made as Alternate Base
Rate Loans. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans shall be made.
(b) In the event that the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Company) that by reason of circumstances affecting the interbank eurodollar
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for any Interest Period with respect to proposed
Competitive Loans to be made pursuant to an Index Rate Competitive Loan
Request, the Administrative Agent shall forthwith give telex, telecopy
or telephone notice of such determination, confirmed in writing, to the
Company and the Lenders at least two Business Days prior to the proposed
Competitive Loan Date, and such Competitive Loans shall not be made on
such Competitive Loan Date. Until any such notice has been withdrawn by
the Administrative Agent, no further Index Rate Competitive Loan Requests
shall be submitted by the Company.
2.11 Pro Rata Borrowings and Payments. (a) Each
borrowing by the Company of Revolving Credit Loans shall be made ratably
from the Lenders in accordance with their Commitment Percentages.
(b) Whenever any payment received by the Administrative
Agent under this Agreement is insufficient to pay in full all amounts then
due and payable to the Administrative Agent and the Lenders under this
Agreement, and the Administrative Agent has not received a Payment Sharing
Notice (or if the Administrative Agent has received a Payment Sharing
Notice but the Event of Default specified in such Payment Sharing Notice
has been cured or waived), such payment shall be distributed and applied
by the Administrative Agent and the Lenders in the following order:
first, to the payment of fees and expenses due and payable to the
Administrative Agent, acting as Administrative Agent for the benefit of
the Lenders, under and in connection with this Agreement; second, to the
payment of all expenses due and payable under subsection 9.5, ratably
among the Lenders in accordance with the aggregate amount of such payments
owed to each such Lender; third, to the payment of fees due and payable
under subsection 2.4, ratably among the Lenders in accordance with their
Commitment Percentages; fourth, to the payment of interest then due and
payable under this Agreement, ratably among the Lenders in accordance with
the aggregate amount of interest owed to each such Lender; and fifth, to
the payment of the principal amount of the Loans which is then due and
payable, ratably among the Lenders in accordance with the aggregate
principal amount owed to each such Lender.
(c) After the Administrative Agent has received a Payment
Sharing Notice which remains in effect, all payments received by the
Administrative Agent under this Agreement shall be distributed and applied
by the Administrative Agent and the Lenders in the following order:
first, to the payment of all amounts described in clauses first through
third of the foregoing paragraph (b), in the order set forth therein;
and second, to the payment of the interest accrued on and the principal
amount of all of the Loans, regardless of whether any such amount is then
due and payable, ratably among the Lenders in accordance with the
aggregate accrued interest plus the aggregate principal amount owed to
such Lender.
(d) All payments (including prepayments) to be made by
the Company on account of principal, interest and fees shall be made
without set-off or counterclaim and shall be made to the Administrative
Agent for the account of the Lenders at the Administrative Agent's office
specified in subsection 9.2 in Dollars and in immediately available funds.
The Administrative Agent shall distribute such payments to the Lenders
entitled thereto promptly upon receipt in like funds as received.
If any payment hereunder of fees or principal of or interest on Alternate
Base Rate Loans or Competitive Loans made pursuant to an Absolute Rate
Competitive Loan Request, becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding
Business Day, and, with respect to payments of principal, interest thereon
shall be payable during such extension at the rate then applicable
thereunder.
2.12 Taxes. (a) All payments made by the Company under
this Agreement shall be made free and clear of, and without deduction or
withholding for or on account of,any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductios or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former
connection between the Administrative Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent
or such Lender having executed, delivered or performed its obligations
or received a payment under, or enforced, this Agreement or any Note).
If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes
are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable
to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender
(after payment of all Non-Excluded Taxes and Other Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement, provided, however, that the Company shall
not be required to increase any such amounts payable to any Lender with
respect to any Non-Excluded Taxes (i) that are attributable to such
Lender's failure to comply with the requirements of paragraph (d) or (e)
of this subsection 2.12 or failure to obtain either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 or any
applicable successor form from any Transferee that is a Participant or
a Competitive Loan Assignee certifying that such Participant is entitled
to receive payments under this Agreement without deduction or withholding
of any United States federal income taxes or (ii) that are United States
withholding taxes imposed on amounts payable to such Lender at the time
the Lender becomes a party to this Agreement, except to the extent that
such Lender's assignor (if any) was entitled, at the time of assignment,
to receive additional amounts from the Company with respect to such
Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Company shall pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are
payable by the Company, as promptly as possible thereafter the Company
shall send to the Administrative Agent for its own account or for the
account of the relevant Lender, as the case may be, a certified copy of
an original official receipt received by the Company, or other evidence
of payment reasonably satisfactory to the Administrative Agent, showing
payment thereof. If the Company fails to pay any Non-Excluded Taxes or
Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other
required documentary evidence, the Company shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest
or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure.
(d) (i) Each Lender (or Transferee) that is not a
citizen or resident of the United States of America, a corporation,
partnership or other entity created or organized in or under the laws
of the United States of America (or any jurisdiction thereof), or any
estate or trust that is subject to federal income taxation regardless
of the source of its income (a "Non-U.S. Lender") shall deliver to the
Company and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been
purchased, and in the case of a Competitive Loan Assignee, to the Lender
from which the related Competitive Loan shall have been assigned) two
copies of (A) either (1) U.S. Internal Revenue Service Form 1001 or Form
4224, or (2) in the case of a Non-U.S. Lender that does not meet the
requirements of the documents described in clause (1) hereof claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c)
of the Code with respect to payments of "portfolio interest," a statement
substantially in the form of Exhibit E and (B) a Form W-8 or W-9,
including, where applicable, with respect to both clauses (1) and (2)
above, any such forms required to be provided to certify to such
exemption on behalf of such Non-U.S. Lender's beneficial owners, or, in
each case, any subsequent versions thereof or successors thereto, properly
completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. federal withholding tax on all
payments by the Company under this Agreement and any Notes. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant,
on or before the date such Participant purchases the related participation,
and in the case of a Competitive Loan Assignee, on or before the date of
such Competitive Loan Assignment). In addition, each Non-U.S. Lender
shall deliver such forms (and, where applicable, any such forms on behalf
of its beneficial owners) promptly upon the obsolescence or invalidity
of any form previously delivered by such Non-U.S. Lender. Each Non-U.S.
Lender shall promptly notify the Company at any time it determines that
it is no longer in a position to provide any previously delivered
certificate to the Company (or any other form of certification adopted
by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required
to deliver any form pursuant to this paragraph that such Non-U.S. Lender
is not legally able to deliver.
(ii) Each Lender which is not a Non-U.S. Lender shall
deliver to the Company and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have
been purchased, and in the case of a Competitive Loan Assignee, to the
Lender from which the related Competitive Loan shall have been assigned)
two copies of a statement which shall contain the address of such Lender's
office or place of business in the United States and shall be signed by
an authorized officer of such Lender, together with two duly completed
copies of Form W-9 (or any applicable successor form) unless it establishes
to the satisfaction of the Company that it is otherwise eligible for an
exemption from backup withholding tax or other applicable withholding tax.
Each such Lender shall deliver to the Company and the Administrative Agent
(or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased, and in the case of a Competitive
Loan Assignee, to the Lender from which the related Competitive Loan shall
have been assigned) two further duly completed and signed forms and
statements (or successor forms) at or before the time any such form or
statement becomes obsolete.
(iii) Each Lender agrees to indemnify and hold harmless
the Company and the Administrative Agent from and against any taxes
imposed by or on behalf of the United States or any taxing jurisdiction
thereof, penalties, additions to tax, fines, interest or other liabilities,
costs or losses, including, without limitation, reasonable attorney's fees
and expenses incurred or payable by the Company or the Administrative Agent
as a result of the failure of the Company or the Administrative Agent to
comply with its obligations to deduct or withhold any taxes imposed by
or on behalf of the United States or any taxing jurisdiction thereof
(including penalties, additions to tax, fines or interest on such taxes)
from any payments made pursuant to this Agreement which failure resulted
from the Company's or the Administrative Agent's reliance on any
representation, covenant, form, statement, certificate or other information
provided to it by such Lender pursuant to this subsection 2.12(d).
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S.withholding tax under the law of the jurisdiction in
which the Company is located, or any treaty to which such jurisdiction is
a party, with respect to payments under this Agreement shall deliver to
the Company (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the Company,
such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate, provided that such Lender is legally
entitled to complete, execute and deliver such documentation and in such
Lender's reasonable judgment such completion, execution or submission
would not materially prejudice the legal position of such Lender
(f) Without limiting the other provisions of this
subsection 2.12, each Lender claiming entitlement to additional amounts
under this subsection 2.12 agrees to use reasonable efforts, including
designating a different lending office for funding or booking
its Loans hereunder, to avoid or to minimize any amounts which might
otherwise be payable pursuant to this subsection; provided, however,
that such efforts shall not cause the imposition on such Lender of any
additional costs or legal or regulatory burdens deemed in the sole
reasonable judgment of such Lender to be material.
(g) If any Lender or Participant identifies a refund of
or credit with respect to an amount of taxes with respect to which the
Company paid to or on behalf of such Lender an additional amount pursuant
to this subsection 2.12 (a "Tax Credit"), the Lender shall promptly
notify the Company of such Tax Credit. The Lender shall use commercially
reasonable efforts to take such action as, in the sole reasonable
discretion of the Lender, is then practicable under the circumstances
to give the benefit of such Tax Credit to the Company.
(h) The Company shall be permitted to replace any
Lender that (i) requests reimbursement for amounts owing pursuant
to subsection 2.12(a) or 2.14 or (ii) defaults in its obligation to
make Loans hereunder, with a replacement financial institution;
provided that (A) such replacement does not conflict with any
Requirement of Law, (B) no Event of Default shall have occurred
and be continuing at the time of such replacement, (C) prior to
any such replacement, such Lender shall
have taken no action under subsection 2.12(f) so as to eliminate the
continued need for payment of amounts owing pursuant to subsection 2.12
(a)or 2.14, (D) the replacement financial institution shall purchase, at
par, all Loans and other amounts owing to such replaced Lender on or
prior to the date of replacement, (E) the Company shall be liable to
such replaced Lender under subsection 2.15 if any Eurodollar Loan owing
to such replaced Lender shall be purchased other than on the last day of
the Interest Period relating thereto, (F) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory
to the Administrative Agent, (G) the replaced Lender shall be obligated
to make such replacement in accordance with the provisions of subsection
9.6 (provided that the Company shall be obligated to pay the registration
and processing fee referred to therein), (H) until such time as such
replacement shall be consummated, the Company shall pay all additional
amounts (if any) required pursuant to subsection 2.12(a) or 2.14, as the
case may be, and (I) any such replacement shall not be deemed to be a
waiver of any rights that the Company, the Administrative Agent or any
other Lender shall have against the replaced Lender.
(i) The agreements in this subsection shall survive
the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.13 Illegality. Notwithstanding any other provisions
herein, if any Requirement of Law or any change therein or in the
interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this
Agreement, (a) the commitment of such Lender hereunder to make
Eurodollar Loans shall forthwith be cancelled and (b) such Lender's
Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans on the respective next
succeeding Interest Payment Date(s) for such Loans or within such earlier
period as required by law. The Company hereby agrees promptly to pay
any Lender, upon its demand, any additional amounts necessary to
compensate such Lender for any costs incurred by such Lender in making
any conversion in accordance with this subsection 2.13 including,
but not limited to, any interest or fees payable by such Lender to
lenders of funds obtained by it in order to make or maintain its
Eurodollar Loans hereunder (such Lender's notice of such costs, as
certified to the Company through the Administrative Agent, to be
conclusive absent manifest error).
2.14 Requirements of Law. Subject to subsection 2.12:
(a) In the event that any Requirement of Law or any
change therein or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental
Authority:
(i) does or shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Loans made
by it, or change the basis of taxation of payments to such Lender of
principal, fees, interest or any other amount payable hereunder (except
for changes in the rate of tax on the overall net income of such Lender);
(ii) does or shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender which are not therwise
included in the determination of the Eurodollar Rate hereunder; or
(iii) does or shall impose on such Lender any other
condition;
and the result of any of the foregoing is to increase the cost to such
Lender of making, renewing or maintaining advances or extensions of credit
or to reduce any amount receivable hereunder, in each case, in respect of
its Eurodollar Loans, then, in any such case, the Company shall promptly
pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such additional cost or reduced amount
receivable which such Lender deems to be material as determined by such
Lender with respect to such Eurodollar Loans. If a Lender becomes
entitled to claim any additional amounts pursuant to this subsection,
it shall promptly notify the Company, through the Administrative Agent,
of the event by reason of which it has become so entitled.
(b) In the event that any Lender shall have determined
that the adoption of any law, rule or regulation regarding capital
adequacy, or any change therein or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such
Lender with any request or directive regarding capital adequacy (whether
or not having the force of law) from any central bank or Governmental
Authority, does or shall have the effect of reducing the rate of return
on such Lender's or such corporation's capital as a consequence of its
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, within 15 days after demand
by such Lender, the Company shall pay to such Lender such additional
amount as shall be requested by such Lender as being required to compensate
it for such reduction.
(c) A certificate as to any additional amounts payable
pursuant to this subsection submitted by such Lender (with a copy to the
Administrative Agent) to the Company shall be conclusive in the absence
of manifest error. This subsection 2.14 shall survive the termination of
this Agreement and payment of the Loans and all other amounts
payable hereunder.
2.15 Indemnity. The Company agrees to indemnify each
Lender and to hold such Lender harmless from any loss or expense which
such Lender may sustain or incur as a consequence of (a) default by the
Company in payment of the principal amount of or interest on any
Eurodollar Loans of such Lender, including, but not limited to, any
such loss or expense arising from interest or fees payable by such Lender
to lenders of funds obtained by it in order to make or maintain its
Eurodollar Loans hereunder, (b) default by the Company in making a
borrowing after the Company has given a notice in accordance with
subsection 2.1(d) or 2.2(b)(iv)(B), including, but not limited to,
any such loss or expense arising from interest or fees payable by such
Lender to lenders of funds obtained by it to make or maintain its
Eurodollar Loans hereunder and (c) default by the Company in making any
prepayment after the Company has given a notice in accordance with
subsection 2.7 or (d) a prepayment, voluntary or involuntary, of a
Eurodollar Loan on a day which is not the last day of an Interest
Period with respect thereto, including, but not limited to, any such loss
or expense arising from interest or fees payable by such Lender to
lenders of funds obtained by it in order to maintain its Eurodollar
Loans hereunder. This subsection 2.15 shall survive termination of
this Agreement and payment of the Loans and all other amounts payable
hereunder.
2.16 Extension of Termination Date. (a) On or before
the date which is 45 days (but no more than 60 days) prior to the
then-existing Termination Date, the Company may make a request to the
Administrative Agent (which shall promptly notify each Lender
of its receipt of such request) on behalf of the Lenders for an extension
of the then-existing Termination Date to the date 364 days after the
then-existing Termination Date.
(b) In the case of each requested extension, each
Lender shall promptly (and in no case later than the date (the
"Decision Date") 30 days prior to the then-existing Termination Date)
notify the Administrative Agent as to whether or not in such Lender's
sole discretion such Lender consents to such extension. The
Administrative Agent shall notify the Borrower on the Business Day
immediately following such Decision Date as to which Lenders shall have
consented to such request and which Lenders shall not have consented to
such request (any Lender not providing any notice to the Administrative
Agent by the Decision Date being deemed not to have consented to such
request). The then-existing Termination Date shall be extended only if
(i) Lenders having Loan Commitments aggregating at least 75% of the total
Loan Commitments consent and (ii) either (A) all non-consenting Lenders
have been replaced by replacement banks or other financial institutions
in accordance with the provisions of subsection 9.6 hereof such that the
aggregate amount of Loan Commitments is not reduced or (B) in the event
that not all non-consenting Lenders have been replaced, the Company
notifies the Administrative Agent that it wishes to extend the
then-existing Termination Date notwithstanding the reduced amount of
aggregate Loan Commitments and each consenting Lender and each replacement
bank or other financial institution in its sole discretion consents to
such extension after receiving notice of such reduced amount of aggregate
Loan Commitments; provided, that the Termination Date shall be extended
pursuant to this subsection 2.16 no more than twice. In the event that
the then-existing Termination Date is extended pursuant to clause (ii)
(B) of the preceding sentence, on the then-existing Termination Date the
Company shall pay to the Administrative Agent, for the benefit of each
non-consenting Lender that is not replaced with a replacement bank or
other financial institution, all amounts due with respect to such
non-consenting Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans herein provided for, the Company hereby
represents and warrants to the Administrative Agent and to each Lender
that:
3.1 Financial Condition. The consolidated balance sheets
of the Company and its consolidated Subsidiaries as at December 31, 1997
and December 31, 1998 and the related consolidated statements of income
and stockholders' equity and cash flow for the fiscal years ended on such
dates, reported on by PricewaterhouseCoopers LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct in all
material respects and present fairly the consolidated financial condition
of the Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and changes in financial position
for the fiscal years then ended. The unaudited consolidated balance sheet
of the Company and its consolidated Subsidiaries as at March 31, 1999 and
the related unaudited consolidated statements of income and cash flow for
the three-month period ended on such date, copies of which have heretofore
been furnished to each Lender, are complete and correct in all material
respects and present fairly the consolidated financial condition of the
Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and cash flow for the three-month
period then ended (subject to normal year-end audit adjustments). All such
financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout
the periods involved. Neither the Company nor any of its consolidated
Subsidiaries had on March 31, 1999 any material Guarantee Obligation,
contingent liabilities or liability for taxes, long-term lease or unusual
forward or long-term commitment, which is not reflected in the unaudited
consolidated balance sheet as at March 31, 1999 or in the notes thereto.
3.2 No Change. Since December 31, 1998 there has been
no material adverse change in the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken
as a whole.
3.3 Corporate Existence; Compliance with Law. Each of
the Company and its Subsidiaries (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, (b) has the corporate power and authority and the legal
right to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged,
(c) is duly qualified as a foreign corporation and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification and
where the failure to be so qualified would have a material adverse effect
upon the business operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole and (d) is in compliance
with all Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to
have a material adverse effect on the business, operations, property or
financial or other condition of the Company and its Subsidiaries taken as
a whole and could not materially adversely affect the ability of the
Company to perform its obligations under this Agreement.
3.4 Corporate Power; Authorization; Enforceable
Obligations. The Company has the corporate power and authority and the
legal right to make, deliver and perform this Agreement and any Note and
to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of this Agreement
and any Note. No consent or authorization of, filing with or other act by
or in respect of any Governmental Authority is required in connection with
the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of this Agreement or any Note. This Agreement
has been, and any Note will be, duly executed and delivered on behalf of
the Company. This Agreement constitutes, and any Note when executed and
delivered will constitute, a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or
at law).
3.5 No Legal Bar. The execution, delivery and
performance of this Agreement and any Note, the borrowings hereunder and
the use of the proceeds thereof, will not violate any Requirement of Law
or any Contractual Obligation of the Company or of any of its
Subsidiaries, and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation
or proceeding of or before any arbitrator or Governmental Authority is
pending or, to the knowledge of the Company, threatened by or against the
Company or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to this Agreement or
any Note or any of the transactions contemplated hereby, or (b) which
could reasonably be expected to have a material adverse effect on the
business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole.
3.7 No Default. Neither the Company nor any of its
Subsidiaries is in default in any material respect under or with respect
to any Contractual Obligation which could reasonably be expected to be
materially adverse to the business, operations, property or financial or
other condition of the Company and its Subsidiaries taken as a whole or
which could materially adversely affect the ability of the Company or
any Subsidiary to perform its obligations under this Agreement and any
Note. No Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Company
and its Subsidiaries has good record and marketable title in fee simple
to or valid leasehold interests in all its real property which is material
to the Company and its Subsidiaries, and good title to all its other
property which is material to the Company and its Subsidiaries and none
of such property is subject to any Lien of any nature whatsoever which
is prohibited by subsection 6.1 hereof.
3.9 No Burdensome Restrictions. No Contractual
Obligation of the Company or any of its Subsidiaries and no Requirement
of Law materially adversely affects, or insofar as the Company may
reasonably
foresee may so affect, the business, operations, property or financial
or other condition of the Company and its Subsidiaries taken as a whole.
3.10 Taxes. Each of the Company and its Subsidiaries
has filed or caused to be filed all material tax returns which to the
reasonable knowledge of the Company are required to be filed and has
paid all taxes shown to be due and payable on said returns or on any
assessment made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any
Governmental Authority (other than those the amount or validity of which
is currently being contested in good faith by appropriate proceedings
and with respect to which reserves in conformity with GAAP have been
provided on the books of the Company or its Subsidiaries, as the case
may be, or which are otherwise individually or in the aggregate not
material); and no tax liens have been filed and, to the reasonable
knowledge of the Company, no claims are being asserted with respect to
any such taxes, fees or other charges.
3.11 Federal Regulations. No part of the proceeds of any
Loans hereunder will be used for the purpose, whether immediate,
incidental, or ultimate, of purchasing any Margin Stock of any corporation
or carrying any Margin Stock of any corporation, or for any purpose which
violates Regulation U of the Board of Governors of the Federal Reserve
System, or which would be inconsistent with or violate, the provisions of
any of the Regulations of such Board of Governors. If requested by any
Lender or the Administrative Agent, the Company will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form U-1 referred to in said
Regulation U.
3.12 ERISA. None of the Company, any of its Subsidiaries
or any commonly controlled entity has incurred any material liability
related to the withdrawal from any Multiemployer Plan or the termination
of any Single Employer Plan. The withdrawal by the Company or any of its
Subsidiaries or any Commonly Controlled Entity from all Multiemployer
Plans in which they participate would not have a material adverse effect
on the business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole. The Company has not
been notified that any Multiemployer Plan to which the Company, any of its
Subsidiaries or any Commonly Controlled Entity contributes is either in
Reorganization or Insolvent. All Single Employer Plans maintained by the
Company, any of its Subsidiaries or any Commonly Controlled Entity are in
material compliance with all applicable requirements of law. The sum of
the present value of all accrued benefits vested under all Single Employer
Plans maintained by the Company or any of its Subsidiaries or any Commonly
Controlled Entity (based on assumptions used to fund such Plans) did not,
as of December 31, 1998, exceed the value of the assets of such Plans
allocable to such vested benefits.
3.13 Investment Company Act. The Company is not an
"investment company," or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
3.14 Subsidiaries. All of the Subsidiaries of the Company
at the date hereof are set forth on Schedule 3.14.
3.15 Purpose of Loans. The proceeds of the Loans shall be
used by the Company for general corporate purposes.
3.16 Year 2000 Matters. Any reprogramming required to
permit the proper functioning (but only to the extent that such proper
functioning would otherwise be impaired by the occurrence of the year 2000)
in and following the year 2000 of computer systems and other equipment
containing embedded microchips, in either case owned or operated by the
Company or any of its Subsidiaries or used or relied upon in the conduct
of their business (including any such systems and other equipment supplied
by others or with which the computer systems of the Company or any of its
Subsidiaries interface), and the testing of all such systems and other
equipment as so reprogrammed, will be completed by September 30, 1999.
The costs to the Company and its Subsidiaries that have not been incurred
as of the date hereof for such reprogramming and testing and for the other
reasonably foreseeable consequences to them of any improper functioning
of other computer systems and equipment containing embedded microchips due
to the occurrence of the year 2000 could not reasonably be expected to
result in a Default or Event of Default or to have a material adverse
effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole. Except
for any reprogramming referred to above, the computer systems of the
Company and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be,
sufficient for the conduct of their business as currently conducted.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The obligation of each
Lender to make an initial Loan hereunder is subject to the satisfaction of
the following conditions precedent:
(a) Legal Opinion. The Administrative Agent shall have
received, with a counterpart for each Lender, an opinion of Xxxxx X.
Xxxxxxx, Esq., Executive Vice President and General Counsel of the Company,
dated the Closing Date and addressed to the Administrative Agent and the
Lenders, substantially in the form of Exhibit F. Such opinion shall also
cover such other matters incident to the transactions contemplated by this
Agreement as the Administrative Agent or any Lender shall reasonably
require.
b) Officer's Certificate. The Administrative Agent shall
have received, with a counterpart for each Lender, an Officer's
Certificate of the Company dated the Closing Date, substantially in the
form of Exhibit G, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent and its
counsel, executed by the President or Vice President and the Secretary or
Assistant Secretary of the Company.
(c) Secretary's Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of the Secretary of the Company dated the Closing Date, substantially in
the form of Exhibit H, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent and its
counsel.
(d) Compliance. Each of the Lenders shall have determined
that the making of such Loan and the use of the proceeds thereof will not
violate any Regulation of the Board of Governors of the Federal Reserve
System, and each Lender shall have received such documents and information
(including without limitation, a duly completed and signed Form U-1) as
such Lenders shall require to make such determination.
(e) Existing Credit Agreement. All interest and fees
under the Existing Credit Agreement through the Closing Date shall have
been paid.
(f) Fees. All fees payable to the Administrative Agent
or any Lender on the Closing Date shall have been paid.
(g) Additional Matters. All other documents and legal
matters in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the
Administrative Agent and the Lenders and their counsel.
4.2 Conditions to All Loans. The obligation of each
Lender to make any Loan (including the initial Loan to be made by it
hereunder) to be made by it hereunder is subject to the satisfaction of
the following conditions precedent on the relevant Borrowing Date:
(a) Representations and Warranties. The representations
and warranties made by the Company herein or which are contained in any
certificate, document or financial or other statement furnished at any
time under or in connection herewith (except the representation and
warranty set forth in subsection 3.2 and except, in the case of a Refunding
Borrowing, the representations and warranties set forth in subsections 3.2,
3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.12 and 3.14) shall be correct on and as of
the Borrowing Date as if made on and as of such date.
(b) No Default or Event of Default. In the case of a
Refunding Borrowing,no Event of Default shall have occurred and be
continuing on the date of such Loan after giving effect to the Loans to be
made on such date and in the case of any other Loan no Default or Event of
Default shall have occurred and be continuing on such date or after giving
effect to the Loan to be made on such Borrowing Date.
(c ) Additional Conditions to Competitive Loans. If such
Loan is made pursuant to subsection 2.2, all conditions set forth in such
subsection shall have been satisfied.
Each borrowing by the Company hereunder shall constitute
a representation and warranty by the Company as of the date of such
borrowing that the conditions in clauses (a), (b) and (c) of this
subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Loan
Commitments remain in effect, any Loan remains outstanding and unpaid or
any other amount is owing to any Lender or the Administrative Agent
hereunder, the Company shall and in the case of the agreements set forth
in subsections 5.3, 5.4, 5.5 and 5.6 cause each of its Subsidiaries to:
5.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Company, a copy of the
consolidated balance sheet of the Company and its consolidated Subsidiaries
as at the end of such year and the related consolidated statements of
income and stockholders' equity and cash flow for such year, setting forth
in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than
60 days after the end of each of the first three quarterly periods of each
fiscal year of the Company, the unaudited consolidated balance sheet of
the Company and its consolidated Subsidiaries as at the end of each such
quarter and the related unaudited consolidated statements of income and
cash flow of the Company and its consolidated Subsidiaries for such
quarterly period setting forth in each case in comparative form the figures
for the comparable quarter of the previous year in the case of the
consolidated statements of income and the end of the immediately preceding
fiscal year in the case of the consolidated balance sheet, certified by
the chief financial officer of the Company (subject to normal year-end
audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein
(except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to each
Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a) above, a certificate of the
independent certified public accountants reporting on such financial
statements stating that in making the examination necessary therefor no
knowledge was obtained of any Default or Event of Default, except as
specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b) above, a certificate
of a Responsible Officer (i) stating that, to the best of such officer's
knowledge, the Company during such period has observed or performed all
of its covenants and other agreements, and satisfied every condition,
contained in this Agreement and in any Note to be observed, performed or
satisfied by it, and that such officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate, and
(ii) showing in detail the calculations supporting such statement in
respect of subsections 6.3 and 6.4;
(c) within five days after the same are sent, copies of
all financial statements and reports which the Company sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Company may make to,
or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(d) promptly, such additional financial and other
information as any Lender may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the
case may be, all its obligations of whatever nature, except when the
amount or validity thereof is currently being contested in good faith
by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Company or its
Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now conducted
by it and preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or desirable in
the normal conduct of its business except as otherwise permitted pursuant
to subsection 6.2; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole.
5.5 Maintenance of Property; Insurance. Keep all
property useful and necessary in its business in good working order and
condition; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such
amounts and against at least such risks as are usually insured against in
the same general area by companies engaged in the same or a similar
business; and furnish to each Lender, upon written request, full
information as to the insurance carried.
5.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which full,
true and correct entries in conformity with GAAP and all Requirements of
Law shall be made of all dealings and transactions in relation to its
business and activities; and permit representatives of any Lender to visit
and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may
reasonably be desired, and to discuss the business, operations, properties
and financial and other conditions of the Company and its Subsidiaries
with officers and employees of the Company and its Subsidiaries and with
its independent certified public accountants.
5.7 Notices. Promptly give notice to the Administrative
Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any default or event of default under any material
Contractual Obligation of the Company or any of its Subsidiaries;
(c )of any litigation, investigation or proceeding which
may exist at any time between the Company or any of its Subsidiaries and
any Governmental Authority, which in either case, if not cured or if
adversely determined, as the case may be, would have a material adverse
effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole;
(d) of any litigation or proceeding affecting the Company
or any of its Subsidiaries in which (i) the amount involved is $50,000,000
or more and not covered by insurance or (ii) injunctive or similar relief
is sought which if adversely determined would have a material adverse
effect on the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole;
(e) of the following events, as soon as possible and in any
event within 30 days after the Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Plan, or (ii) the institution of proceedings or the taking
or expected taking of any other action by PBGC or the Company or any
Commonly Controlled Entity to terminate or withdraw or partially withdraw
from any Plan and, with respect to a Multiemployer Plan, the
Reorganization (as defined in Section 4241 of ERISA) or Insolvency (as
defined in Section 4245 of ERISA) of such Plan and in addition to such
notice, deliver to the Administrative Agent and each Lender whichever of
the following may be applicable: (A) a certificate of a Responsible
Officer setting forth details as to such Reportable
Event and the action that the Company or Commonly Controlled Entity
proposes to take with respect thereto, together with a copy of any notice
of such Reportable Event that may be required to be filed with PBGC, or
(B) any notice delivered by PBGC evidencing its intent to institute such
proceedings or any notice to PBGC that such Plan is to be terminated, as
the case may be; and
(f) of a material adverse change in the business,
operations, property or financial or other condition of the Company and
its Subsidiaries taken as a whole.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer setting forth details of the occurrence referred
to therein and stating what action the Company proposes to take with
respect thereto. For all purposes of clause (e) of this subsection,
the Company shall be deemed to have all knowledge or knowledge of all facts
attributable to the administrator of such Plan.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Loan
Commitments remain in effect, any Loan remains outstanding and unpaid or
any other amount is owing to any Lender or the Administrative Agent
hereunder, the Company shall not, nor in the case of the agreements set
forth in subsections 6.1 or 6.2 shall it permit any of its Subsidiaries
to, directly or indirectly:
6.1 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its properties or assets, whether
now owned or hereafter acquired, except:
(a) Liens existing on the date hereof which are described
in Schedule 6.1 hereto;
(b) Liens created in favor of the Administrative Agent,
for the ratable benefit of the Lenders;
(c ) Liens for taxes or assessments either (i) not yet
delinquent or (ii) the validity of which is being contested in good faith
and as to which any reserves required by GAAP have been set aside;
(d) deposits or pledges to secure the payment of
workmen's compensation,unemployment insurance or other social security
benefits or obligations, or to secure the performance of bids, trade
contracts, leases, public or statutory obligations, surety or appeal bonds
or other obligations of a like nature incurred in the ordinary course of
business;
(e) materialmen's, mechanics', workmen's, repairmen's,
employees', or other like Liens either (i) arising in the ordinary course
of business and securing obligations not more than 90 days overdue or (ii)
being contested in good faith and as to which any
reserves required by GAAP have been set aside or as to which adequate
bonds have been obtained;
(f) minor defects, easements, exceptions, reservations and
irregularities in the title to real property which do not, in the
aggregate, materially impair the use of such property for the purposes for
which it is or may reasonably be expected to be held;
(g) Liens on assets, each of which Liens (i) existed on such
assets before the time of their acquisition by the Company or such
Subsidiary, or (ii) existed on such assets of any Subsidiary before the
time it became a Subsidiary, or (iii) was created solely for the purpose
of securing, and was created substantially contemporaneously with the
incurring of, Indebtedness representing, or incurred to finance, the cost
of such assets; provided that, with respect to Liens referred to in
clause (iii), (A) such Liens shall at all times be confined to the assets
so acquired and improvements, alterations, replacements and modifications
thereto and (B) the principal amount of the Indebtedness secured by such
Liens shall in no case exceed 100% of the lesser of the cost or the fair
market value of the assets subject thereto at the time of acquisition
thereof, and provided, further that with respect to each Lien referred to
in this paragraph (g), any extension, renewal or replacement thereof shall
be permitted only to the extent that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so
secured at the time of such extension, renewal or replacement; and
(h) Liens not otherwise permitted by this subsection 6.1
so long as neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to the Company and all Subsidiaries) 10% of
Consolidated Net Worth at any time.
6.2 Limitation on Mergers and Sales of Assets. (a)
Consolidate or merge with or into, or sell, convey, transfer or lease in
a single transaction or in a series of related transactions any substantial
part of the assets of the Company and its consolidated Subsidiaries taken
as a whole to, any other Person, except (i) any such consolidation, merger,
sale, conveyance, transfer or lease when the only parties to such
transaction or series of transactions are one of its Subsidiaries and one
or more of its other Subsidiaries, (ii) any such sale, conveyance, transfer
or lease to the Company by one or more of its Subsidiaries and (iii) the
merger or consolidation of the Company with another corporation, provided
that the Company is the surviving corporation and that, after giving effect
to such consolidation or merger, no Default or Event of Default has
occurred and is continuing.
(b) Convey, transfer or lease, or sell and lease-back, any
significant fixed asset used or useable in its business or the shares of
the capital stock of any Subsidiary, except (i) to the Company by any of
its Subsidiaries or to any of the Company's Subsidiaries by one or more of
its other Subsidiaries, (ii) for a sale or conveyance of such a
fixed asset in connection with the replacement thereof or in
the ordinary course of business or (iii) if such conveyance, transfer,
lease or sale is for fair value as determined by the Board of Directors or
any executive officer of the Company and not materially adverse to the
Lenders.
6.3 Maintenance of Ratio of Consolidated Total
Indebtedness to Consolidated Total Capitalization. Permit the ratio of
Consolidated Total Indebtedness to Consolidated Total Capitalization to
exceed 0.60 to 1 at any time.
6.4 Maintenance of Ratio of Annualized Consolidated Cash
Flow. Permit the ratio of (a) Annualized Consolidated Cash Flow as at the
end of any fiscal quarter of the Company to (b) Annualized Consolidated
Interest Expense as at the end of such fiscal quarter, to be less than
2.0 to 1.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) The Company shall fail to pay (i) any principal of any
Loan when due in accordance with the terms thereof or (ii) any interest
on any Loan, or any other amount payable hereunder, within five days after
any such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made or deemed made
by the Company herein or which is contained in any certificate, document
or financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c ) The Company shall default in the observance or
performance of any agreement contained in Section 6; or
(d) The Company shall default in any material respect
in the observance or performance of any other agreement contained in
this Agreement, and such default shall continue unremedied for a period
of 30 days; or
(e) The Company or any of its Subsidiaries shall (i)
default in any payment of principal of or interest on any Indebtedness
for more than $2,000,000 (other than the Loans) or in the payment of
any Guarantee Obligation in excess of $2,000,000 beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee Obligation was
created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee
Obligation or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, if such default or other event or condition causes, or permits the
holder or holders of such Indebtedness or beneficiary or beneficiaries of
such
Guarantee Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to become due prior to its stated
maturity or such Guarantee Obligation to become payable; or
(f)(i) The Company or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the
Company or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Company or any of its Subsidiaries any case, proceeding or other action of
a nature referred to in clause (i)above which (A) results in the entry of
an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed
or bonded pending appeal within 60 days from the entry thereof; or (iv)
the Company or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
the Company or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g)(i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency"
(as defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed,
or a trustee shall be appointed, to administer or to terminate, any Single
Employer Plan, which Reportable Event or institution of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, and, in the case of a Reportable Event, the
continuance of such Reportable Event unremedied for ten days after notice
of such Reportable Event pursuant to Section 4043(a), (c) or (d) of ERISA
is given and, in the case of the institution of proceedings, the
continuance of such proceedings for ten days after commencement thereof,
(iv) any Single Employer Plan shall terminate for purposes of Title IV of
ERISA, (v) any of the Company, any of its Subsidiaries or any commonly
controlled entity shall incur material liability relating to the withdrawal
from any Multiemployer Plan or the termination of any Single Employer Plan
or (vi) any other event or condition shall occur or exist, with respect to
a Single Employer Plan;
provided, that in the case of each of clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if
any, could subject the Company or any of its Subsidiaries to any tax,
penalty or other liabilities that in the aggregate would be material in
relation to the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole; or
(h) One or more judgments or decrees shall be entered
against the Company or any of its Subsidiaries involving in the aggregate
a liability (to the extent not paid or covered by insurance) of
$50,000,000 or more and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 90 days from
the entry thereof; or
(i )(i) any "person" or "group" (as such terms are used
in Sections 13(d)and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), other than members of the Xxxxxxxx family
or any trusts for their benefit, shall become, or obtain rights (whether
by means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act),
directly or indirectly, of shares of Capital Stock representing more than
35% of the total voting power of the Company, or (ii) the board of
directors of the Company shall cease to consist of a majority of
Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above, automatically
the Loan Commitments shall immediately terminate and the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this
Agreement and any Note shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the
Company declare the Loan Commitments to be terminated forthwith,
whereupon the Loan Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent
shall, by notice of default to the Company, declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this
Agreement and any Note to be due and payable forthwith, whereupon the
same shall immediately become due and payable. Except as expressly
provided above in this Section, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. The Lenders from time to time party to
this Credit Agreement, whether as original signatories or as Purchasing
Lenders pursuant to subsection 9.6, hereby irrevocably designate and
appoint The Chase Manhattan Bank as the Administrative Agent of such
Lender under this Agreement, and each such Lender irrevocably authorizes
The Chase Manhattan Bank, as the Administrative Agent for such Lender, to
take such action on its behalf under the provisions of this Agreement and
to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-
in-fact or Affiliates shall be (i) liable for any action lawfully taken
or omitted to be taken by it or such Person under or in connection
with this Agreement (except for its or such Person's own gross negligence
or willful misconduct), or (ii) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties made
by the Company or any officer thereof contained in this Agreement or in
any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any Note
or for any failure of the Company to perform its obligations hereunder.
The Administrative Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Company.
8.4 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying,
upon any Note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Company), independent
accountants and other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified
in failing or refusing to take any action under this Agreement unless it
shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its satisfaction
by the Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting,
or in refraining from
acting, under this Agreement and any Note in accordance with a request of
the Required Lenders, or all the Lenders where unanimity is required
pursuant to subsection 9.1, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and
all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice
is a "notice of default." In the event that the administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof
to the Lenders. The Administrative Agent shall take such action with
respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders, or all the Lenders where unanimity is
required pursuant to subsection 9.1; provided that unless and until the
Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event
of Default as it shall deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent, Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it and that
no act by the Administrative Agent hereinafter taken, including any review
of the affairs of the Company, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender.
Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and credit
worthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property,
financial and other condition or creditworthiness of the Company which may
come into the possession of the Administrative Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed
by the Company and without limiting the obligation of the Company to
do so), ratably according to the respective amounts of
their original Loan Commitments, from and against any and all liabilities,
obligations, losses, damages, penalties, actions,judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including without limitation at any time following the payment of the
Loans) be imposed on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of this Agreement, or any
documents contemplated by or referred to herein or the transactions
contemplated hereby or any action taken or omitted by the Administrative
Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the Administrative Agent's
gross negligence or willful misconduct. The agreements in this subsection
shall survive the payment of the Loans and all other amounts payable
hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Company as
though the Administrative Agent were not the Administrative Agent
hereunder. With respect to its Loans made or renewed by it and any Note
issued to it, the Administrative Agent shall have the same rights and
powers under this Agreement as any Lender and may exercise the same as
though it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its individual
capacity.
8.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 10 days' notice to the
Lenders. If the Administrative Agent shall resign as Administrative
Agent under this Agreement, then the Required Lenders shall appoint from
among the Lenders a successor agent for the Lenders which successor
agent shall be approved by the Company, whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative
Agent, and the term "Administrative Agent" shall mean such successor
agent effective upon its appointment, and the former Administrative
Agent's rights, powers and duties as Administrative Agent shall be
terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement or
any holders of the Loans. After any retiring Administrative Agent's
resignation hereunder as Administrative Agent, the provisions of this
subsection 8.9 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
8.10 Documentation Agent and Syndication Agent. Neither
the Documentation Agent nor the Syndication Agent shall have any duties
or responsibilities hereunder in its capacity as such.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. With the written consent of
the Required Lenders, the Administrative Agent and the Company may, from
time to time, enter into written amendments, supplements or modifications
hereto for the purpose of adding any provisions to this Agreement or any
Note or changing in any manner the rights of the
Lenders or of the Company hereunder or thereunder or waiving, on such
terms and conditions as the Administrative Agent may specify in such
instrument, any of the requirements of this Agreement or any Note or any
Default or Event of Default and its consequences; provided, however, that
(i) such amendments, supplements or modifications may only be made
pursuant to this subsection 9.1 and (ii) no such waiver and no such
amendment, supplement or modification shall (a) extend the maturity of
any Loan (except in connection with an extension of the Termination Date
in accordance with subsection 2.16), or reduce the rate or extend the
time of payment of interest thereon, or reduce any fee payable to the
Lenders hereunder, or reduce the principal amount of any Loan, or
increase the amount or extend the expiration date of any Lender's Loan
Commitment or amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by the Company of any of its rights
and obligations under this Agreement, in each case without the written
consent of each Lender affected thereby, (b) amend, modify or waive any
provision of Section 8 without the written consent of the then
Administrative Agent or (c) amend subsection 2.16 without the written
consent of all the Lenders. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and
shall be binding upon the Company, the Lenders, the Administrative Agent
and all future holders of the Loans. In the case of any waiver, the
Company, the Lenders and the Administrative Agent shall be restored to
their former position and rights hereunder and under any Notes, and any
Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other
default or Event of Default, or impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing,
including by telecopy, and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand,
or when deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, addressed as follows in the case of the
Company and the Administrative Agent, and as set forth in Schedule 9.2
in the case of the other parties hereto, or to such other address as may
be hereafter notified by the respective parties hereto and any future
holders of the Loans:
The Company: Dow Xxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
Telecopy: 000-000-0000
The Administrative Agent: The Chase Manhattan Bank
Agent Bank Services Group
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: 000-000-0000
with copy to: The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: 212-270-1204
provided that any notice, request or demand to or upon the Administrative
Agent or the Lenders pursuant to subsections 2.1(d), 2.2, 2.5 and 2.7
shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and
the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Company agrees
(a) to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement
or modification to, this Agreement and any Notes and any other
documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent, (b) to pay or reimburse each Lender and the
Administrative Agent for all their costs and expenses incurred in
connection with the enforcement or preservation of any rights under
this Agreement, any Notes and any such other documents, including, without
limitation, reasonable fees and disbursements of counsel to the
Administrative Agent and to the several Lenders, (c) to pay, indemnify,
and hold each Lender and the Administrative Agent harmless from, any and
all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other similar
taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of, or consummation of any of
the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, any Notes and any such other documents, and (d) to pay,
indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents and
controlling persons (each, an "Indemnitee") harmless from and against
any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever arising out of the execution, delivery, enforcement,
performance and administration of this Agreement, or the use by the
Company of the
proceeds of the Loans (including, without limitation, any such use that
would result in a violation of Regulation U or X of the Board of Governors
of the Federal Reserve System) (all the foregoing in this clause (d),
collectively, the "Indemnified Liabilities"), provided, that the Company
shall have no obligation hereunder to any Indemnitee with respect to
Indemnified Liabilities to the extent such Indemnified Liabilities are
found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee. The agreements in this subsection 9.5
shall survive repayment of the Loans and all other amounts payable
hereunder.
9.6 Successors and Assigns; Participations; Purchasing
Lenders. (a) This Agreement shall be binding upon and inure to the
benefit of the Company, the Lenders, the Administrative Agent, all future
holders of the Loans, and their respective successors and assigns, except
that the Company may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of
each Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Loan
Commitment of such Lender or any other interest of such Lender hereunder
or under any Note. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the
performance thereof, such Lender shall remain the holder of any such Loan
for all purposes under this Agreement and any Note and the Company and
the Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement and any Note. In no event shall any Participant under any
such participation have any right to approve any amendment or waiver of
any provision of this Agreement or any Note, or any consent to any
departure by the Company therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest
on, the Loans or any fees payable hereunder, or postpone the date of the
final maturity of the Loans, in each case to the extent subject to such
participation. The Company agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or
shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly
to it as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed
to share with the Lenders the proceeds thereof as provided in subsection
9.7(a) as fully as if it were a Lender hereunder. The Company also agrees
that each Participant shall be entitled to the benefits of subsections
2.12, 2.13, 2.14, 2.15 and 9.5 with respect to its participation in the
Loan Commitments and the Loans outstanding from time to time; provided,
that no Participant shall be entitled to receive any greater amount
pursuant to such subsections than the transferor Lender would have been
entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such
transfer occurred.
(c ) Any Lender may, in accordance with applicable law,
at any time assign to one or more banks or other entities ("Competitive
Loan Assignees") any Competitive Loan owing to such Lender and any Note
held by such Lender evidencing such Competitive Loan, pursuant to a
Competitive Loan Assignment executed by the assignor Lender and the
Competitive Loan Assignee. Upon such execution, from and after the date
of such Competitive Loan Assignment, the Competitive Loan Assignee shall,
to the extent of the assignment provided for in such Competitive Loan
Assignment, be deemed to have the same rights and benefits of payment and
enforcement with respect to such Competitive Loan and any such Note and
the same rights of setoff and obligation to share pursuant to subsection
9.7 as it would have had if it were a Lender hereunder; provided, that
unless such Competitive Loan Assignment shall otherwise specify and a
copy of such Competitive Loan Assignment shall have been delivered to the
Administrative Agent for its acceptance and recording in the Register in
accordance with subsection 9.6(f), the assignor thereunder shall act as
collection agent for the Competitive Loan Assignee thereunder, and the
Administrative Agent shall pay all amounts received from the Company which
are allocable to the assigned Competitive Loan and Note, if any, directly
to such assignor without any further liability to such Competitive Loan
Assignee. A Competitive Loan Assignee under a Competitive Loan Assignment
shall not, by virtue of such Competitive Loan Assignment, become a party
to this Agreement or have any rights to consent to or refrain from
consenting to any amendment, waiver or other modification of any provision
of this Agreement or any related document; provided, no Competitive Loan
Assignee shall be entitled to receive any greater amount than the Lender
would have been entitled to receive in respect of the amount of the
Competitive Loan Assignment by such Lender to such Competitive Loan
Assignee had no such assignment occurred; provided, further, that (x) the
assignor under such Competitive Loan Assignment and such Competitive Loan
Assignee may, in their discretion, agree between themselves upon the
manner in which such assignor will exercise its rights under this
Agreement and any related document, and (y) if a copy of such Competitive
Loan Assignment shall have been delivered to the Administrative Agent for
its acceptance and recording in the Register in accordance with subsection
9.6(f), neither the principal amount of, the interest rate on, nor the
maturity date of any Competitive Loan and Note, if any, assigned to the
Competitive Loan Assignee thereunder will be modified without the written
consent of such Competitive Loan Assignee. If a Competitive Loan Assignee
has caused a Competitive Loan Assignment to be recorded in the Register
in accordance with subsection 9.6(f), such Competitive Loan Assignee may
thereafter, in the ordinary course of its business and in accordance with
applicable law, assign such Competitive Loan and Note, if any, to any
Lender, to any affiliate or subsidiary of such Competitive Loan Assignee
or to any other financial institution that has total assets in excess of
$1,000,000,000 and that in the ordinary course of its business extends
credit of the same type as such Competitive Loan, and the foregoing
provisions of this paragraph (c) shall apply, mutatis mutandis, to any
such assignment by a Competitive Loan Assignee. Except in accordance
with the preceding sentence, Competitive Loans and any related Notes may
not be further assigned by a Competitive Loan Assignee, subject to any
legal or regulatory requirement that the Competitive Loan Assignee's
assets must remain under its control.
(d) Any Lender may, in accordance with applicable law, at
any time and from time to time sell to any other Lender or any affiliate
thereof all or any part of such transferor Lender's rights and obligations
under this Agreement (other than its rights with respect to Competitive
Loans, assignment of which shall be governed by paragraph (c) above)
pursuant to an Assignment and Acceptance, executed by such purchasing
Lender and such transferor Lender and delivered to the Administrative
Agent for its acceptance and recording in the Register. In addition, with
the consent of the Company and the Administrative Agent (which in each case
shall not be unreasonably withheld), any Lender may, in accordance with
applicable law, at any time and from time to time sell to one or more
additional banks, financial institutions or other entities that are not
then Lenders or affiliates thereof (together with purchasing Lenders
pursuant to the preceding sentence (including, without limitation, any
affiliate through which Loans were not previously booked), each a
"Purchasing Lender"), all or any part of its rights and obligations under
this Agreement pursuant to an Assignment and Acceptance, executed by such
Purchasing Lender, such transferor Lender, the Company and the
Administrative Agent, and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that no such assignment
to a Purchasing Lender (other than any Lender or any affiliate of any
Lender) shall be in an aggregate principal amount of less than $5,000,000
(other than in the case of an assignment of all of a Lender's interests
under this Agreement), unless otherwise agreed by the Company and the
Administrative Agent. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Purchasing Lender thereunder shall be
a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder with
a Loan Commitment as set forth therein, and (y) the transferor Lender
thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of a transferor
Lender's rights and obligations under this Agreement, such transferor
Lender shall cease to be a party hereto). Notwithstanding any provision
of this subsection 9.6, the consent of the Company shall not be required
for any assignment that occurs when an Event of Default pursuant to
subsection 7(f) shall have occurred and be continuing with respect to
the Company. 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 Purchasing Lender and the resulting
adjustment of Commitment Percentages arising from the purchase by such
Purchasing Lender of all or a portion of the rights and obligations of
such transferor Lender under this Agreement.
(e) The Administrative Agent shall, on behalf of the
Company, maintain at its address referred to in subsection 9.2 a copy of
each Competitive Loan Assignment and each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of (i)
the names and addresses of the Lenders and the Loan Commitment of,
and principal amount and stated interest of the Loans owing to, each
Lender from time to time, and (ii) with respect to each Competitive Loan
Assignment delivered to the Administrative Agent, the name and address of
the Competitive Loan Assignee and the principal amount and stated interest
of each Competitive Loan owing to such Competitive Loan Assignee. The
entries in the Register shall be conclusive, in the absence of manifest
error, and the Company, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the
Register as the owner of the Loan and any Notes evidencing the Loans
recorded therein for all purposes of this Agreement. Any assignment of
any Loan, whether or not evidenced by a Note, shall be effective only
upon appropriate entries with respect thereto being made in the Register
(and each Note shall expressly so provide). Any assignment or transfer
of all or part of a Loan evidenced by a Note shall be registered
on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance, and thereupon one or more new Notes shall be
issued to the designated Assignee. The Register shall be available for
inspection by the Company or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(f) Upon its receipt of a Competitive Loan Assignment
executed by an assignor Lender and a Competitive Loan Assignee, together
with payment from the assignor or assignee Lender to the Administrative
Agent of a registration and processing fee of $2,000.00, the
Administrative Agent shall promptly accept such Competitive Loan
Assignment, record the information contained therein in the Register and
give notice of such acceptance and recordation to the assignor Lender, the
Competitive Loan Assignee and the Company. Upon its receipt of an
Assignment and Acceptance executed by a transferor Lender and a Purchasing
Lender (and, in the case of a Purchasing Lender that is not then a Lender
or an affiliate thereof, by the Company and the Administrative Agent)
together with payment from the assignor or assignee Lender to the
Administrative Agent of a registration and processing fee of $4,000.00,
the Administrative Agent shall promptly accept such Assignment and
Acceptance and promptly record the information contained therein and the
effective date determined pursuant thereto in the Register.
(g) The Company authorizes each Lender to disclose to
any Participant, Competitive Loan Assignee or Purchasing Lender (each,
a "Transferee") and any prospective Transferee any and all financial
information in such Lender's possession concerning the Company and its
affiliates which has been delivered to such Lender by or on behalf of the
Company pursuant to this Agreement or which has been delivered to such
Lender by or on behalf of the Company in connection with such Lender's
credit evaluation of the Company and its affiliates prior to becoming a
party to this Agreement.
(h) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection 9.6 concerning
assignments of Loans and Notes relate only to absolute assignments and
that such provisions do not prohibit assignments creating security
interests, including any pledge or assignment by a Lender of any Loan or
Note to any Federal Reserve Bank in accordance with applicable law.
(i) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (h) above.
9.7 Adjustments; Set-off. (a) If any Lender or
Transferee (a "benefited Lender") shall at any time receive any payment
of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
clause (f) of Section 7, or otherwise) in a greater proportion than any
such payment to and collateral received by any other Lender, if any, in
respect of such other Lender's Loans, or interest thereon, such benefited
Lender shall purchase for cash from the other Lenders such portion of
each such other Lender's Loan, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as shall
be necessary to cause such benefited Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefited Lender,
such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. The
Company agrees that each Lender so purchasing a portion of another
Lender's Loan may exercise all rights of payment (including, without
limitation, rights of set-off) with respect to such portion as fully as
if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without prior
notice to the Company, any such notice being expressly waived by the
Company to the extent permitted by applicable law, upon the occurrence
and continuance of an Event of Default to set-off and apply against any
indebtedness, whether matured or unmatured, of the Company to such Lender,
any amount owing from such Lender to the Company, at or at any time after
the happening of any of the above mentioned events, and the aforesaid
right of set-off may be exercised by such Lender against the Company or
against any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment
creditor of the Company, or against anyone else claiming through or
against the Company or such trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off
shall not have been exercised by such Lender prior to the making, filing
or issuance, or service upon such Lender of, or of notice of, any such
petition; assignment for the benefit of creditors; appointment or
application for the appointment of a receiver; or issuance of execution,
subpoena, order or warrant. Each Lender agrees promptly to notify the
Company and the Administrative Agent after any such set-off and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate
counterparts, and all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the
Company and the Administrative Agent.
9.9 Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
9.10 Integration. This Agreement and any Notes represent
the agreement of the Company, the Administrative Agent and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Lender relative to subject matter hereof not expressly set forth
or referred to herein or in any such Notes.
9.11 Governing Law. This Agreement and the rights and
obligations of the parties under this Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New
York.
9.12 Submission To Jurisdiction; Waivers. (A) The
Company hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive
general jurisdiction of the Courts of the State of New York, the courts
of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or
hereafter have to the venue of any such action or proceeding in any such
court or that such action or proceeding was brought in an inconvenient
court and agrees not to plead or claim the same;
(iii) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in subsection 9.2 or
at such other address of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by law or
shall limit the right to xxx in any other jurisdiction.
(B) The Company and the Administrative Agent and each
Lender hereby irrevocably and unconditionally waive trial by jury in
any legal action or proceeding relating to this Agreement and for any
counterclaim therein.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
DOW XXXXX & COMPANY, INC.
By:________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By:________________________
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE, New York Branch,as
Documentation Agent and as a Lender
By:________________________
Name:
Title:
By:________________________
Name:
Title:
FLEET NATIONAL BANK,
as Syndication Agent and as a Lender
By:________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA
By:________________________
Name:
Title:
By:________________________
Name:
Title:
BANCA DI ROMA
By:________________________
Name:
Title:
By:________________________
Name:
Title:
BANCA NAZIONALE DEL LAVORO
By:________________________
Name:
Title:
BANK OF HAWAII
By:________________________
Name:
Title:
BANK OF NEW YORK
By:________________________
Name:
Title:
DEUTSCHE BANK AG, New York Branch and/or Cayman Islands Branch
By:________________________
Name:
Title:
By:________________________
Name:
Title:
HSBC BANK USA
By:________________________
Name:
Title:
LLOYDS TSB BANK PLC
By:________________________
Name:
Title:
THE NORTHERN TRUST COMPANY
By:________________________
Name:
Title:
SANPAOLO IMI S.P.A.
By:________________________
Name:
Title:
By:________________________
Name:
Title:
SCHEDULE 1.1 to
Amended and Restated Credit Agreement
Lender Loan Commitment
The Chase Manhattan Bank $44,000,000
Westdeutsche Landesbank Girozentrale, $44,000,000
New York Branch
Fleet National Bank $44,000,000
The Northern Trust Company $28,500,000
Bank of Hawaii $28,500,000
Deutsche Bank AG, New York Branch
and/or Cayman Islands Branch $28,500,000
Banca Di Roma $28,500,000
SanPaolo IMI S.p.A. $28,500,000
HSBC Bank USA $28,500,000
Bank of New York $28,500,000
Banca Nazionale Del Lavoro S.p.A., $28,500,000
New York Branch
Banca Commerciale Italiana,
New York Branch $20,000,000
Lloyds TSB Bank plc $20,000,000
Total $400,000,000
SCHEDULE 3.14
SUBSIDIARIES OF THE COMPANY
Name of Subsidiary
Dow Xxxxx AER Company, Inc.
Economic Research Company, Inc.
Dow Xxxxx & Company (Australia) Pty. Limited
Dow Xxxxx XX Services, Inc.
Dow Xxxxx Broadcasting (Asia), Inc.
Dow Xxxxx Broadcasting (Europe), Inc.
Dow Xxxxx Broadcasting (USA), Inc.
Dow Xxxxx Canada, Inc.
Dow Xxxxx Consulting (Shanghai) Limited
Dow Xxxxx Financial Publishing Corp.
Dow Xxxxx Information Publishing, Inc.
Dow Xxxxx Information Services International (HK) Ltd.
Dow Xxxxx International GmbH
Dow Xxxxx International Ltd.
Dow Xxxxx International Marketing Services
Dow Xxxxx (Japan) X.X.
Xxx Xxxxx Newsprint Company, Inc.
Dow Xxxxx Printing Company (Asia), Inc.
Dow Xxxxx Publishing Company (Asia), Inc. (90% owned)
Dow Xxxxx Distribution Co. (Asia), Inc.
Dow Xxxxx Publishing Company (Europe), Inc.
Dow Xxxxx Real Estate Development Corp.
Dow Xxxxx Southern Holding Company, Inc.
Dow Xxxxx Ventures II, Inc.
Dow Xxxxx Ventures III, Inc.
Dow Xxxxx Virginia Company, Inc.
Federal Filings, Incorporated
IDD Enterprises, L.P.
National Delivery Service, Inc.
Xxxxxxx Newspapers, Inc.
Essex County Newspapers, Inc.
News-Sun, Inc.
ONI Press, Inc.
Research and Marketing Solutions, Inc.
The Inquirer & Mirror, Inc.
Portuguese-American Publications, Inc.
Review Publishing Company Limited
The China Phone Book Co. Ltd
SCHEDULE 6.1
EXISTING LIENS
None
SCHEDULE 9.2 to
Amended and Restated Credit Agreement
Names and Addresses of Lenders
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: 212-270-1204
Banca Commerciale Italiana,
New York Branch
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy: 000-000-0000
Banca Di Roma
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy: 000-000-0000
Banca Nazionale Del Lavoro S.p.A.,
New York Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
Bank of Hawaii
000 Xxxxxxxx Xxxxxx, 00xx Xx.
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxx
Telecopy: 000-000-0000
Bank of Xxx Xxxx
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
Telecopy: 000-000-0000
Deutsche Bank AG,
New York Branch and/or
Cayman Islands Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy: 000-000-0000
Fleet National Bank
One Landmark Square, 12th Fl.
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: 000-000-0000
HSBC Bank USA
000 Xxxxxxxx, 00xx Xx.
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxxx
Telecopy: 000-000-0000
Lloyds TSB Bank plc
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: 000-000-0000
The Northern Trust Company
00 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxx
Telecopy: 000-000-0000
SanPaolo IMI S.p.A.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
Westdeutsche Landesbank Girozentrale,
New York Branch
1211 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: 000-000-0000
EXHIBIT A
FORM OF BORROWING NOTICE FOR REVOLVING CREDIT LOANS
Date:
The Chase Manhattan Bank, as Administrative Agent under the
Credit Agreement referred to below
Gentlemen:
Pursuant to subsection 2.1 of the 364-Day Amended and
Restated Credit Agreement, dated as of June 29, 1999, among Dow Xxxxx &
Company, Inc. (the "Company"), the Lenders parties thereto, The Chase
Manhattan Bank, as Administrative Agent, Westdeutsche Landesbank
Girozentrale, as Documentation Agent, and Fleet National Bank, as
Syndication Agent (as the same may be amended, supplemented or otherwise
modified, the "Credit Agreement"), the Company hereby requests that the
following Revolving Credit Loans be made on [date] as follows:
(1). Total Amount of Revolving Credit Loans $__________
(2). Amount of (1) to be allocated to $__________
Eurodollar Loans
(3). Amount of (1) to be allocated to
Alternate Base Rate Loans $__________
(4). Interest Periods and amounts to be allocated
thereto in respect of Eurodollar Loans
(amounts must total (2)):
(i) one month $__________
(ii) two months $__________
(iii) three months $__________
(iv) six months $__________
Total Eurodollar Loans $__________
NOTE: EACH AMOUNT APPEARING IN EACH LINE ABOVE MUST
BE AT LEAST EQUAL TO $10,000,000 AND IN A WHOLE MULTIPLE OF
$1,000,000.
The Company hereby certifies that the conditions set forth
in Section 4.2 of the Credit Agreement have been satisfied.
Terms defined in the Credit Agreement shall have the same
meanings when used herein.
Very truly yours,
DOW XXXXX & COMPANY, INC.
By: _________________________
Name:
Title:
EXHIBIT B
FORM OF COMPETITIVE LOAN REQUEST
___________, ____
The Chase Manhattan Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999, among Dow Xxxxx & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
This is an [Index Rate] [Absolute Rate] Competitive Loan
Request pursuant to subsection 2.2 of the Credit Agreement requesting
quotes for the following Competitive Loans:
Aggregate Principal Amount $________ $________ $________
Competitive Loan Date ________ ________ ________
[Interest Period]* ______________________
Maturity Date** ______________________
Interest Payment Dates ______________________
Very truly yours,
DOW XXXXX & COMPANY, INC.
By: _____________________
Name:
Title:
Note: Pursuant to the Credit Agreement, a Competitive Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission. In
any case, a Competitive Loan Request shall contain the information
specified in the second paragraph of this form.
* Insert only in an Index Rate Competitive Loan Request.
** In an Index Rate Competitive Loan Request, insert last day of
Interest Period.
EXHIBIT C
FORM OF COMPETITIVE LOAN OFFER
___________, ____
The Chase Manhattan Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999, among Dow Xxxxx & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
In accordance with subsection 2.2 of the Credit Agreement,
the undersigned Lender offers to make Competitive Loans thereunder in
the following amounts with the following maturity dates:
Competitive Loan Date: _________, ____
Aggregate Maximum Amount: $___________
Maturity Date 1:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
Maturity Date 2:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
Maturity Date 3:
Maximum Amount $____________
Rate* _____ Amount $________
Rate* _____ Amount $________
Very truly yours,
[NAME OF OFFERING LENDER]
By:_______________________
Name:
Title:
Telephone No.:
Fax No.:
* In the case of Index Rate Competitive Loans, insert margin bid.
In the case of Absolute Rate Competitive Loans, insert fixed rate
bid.
EXHIBIT D
FORM OF COMPETITIVE LOAN CONFIRMATION
___________, ____
The Chase Manhattan Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999, among Dow Xxxxx & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
In accordance with subsection 2.2 of the Credit Agreement,
the undersigned accepts and confirms the offers by Competitive Loan
Lender(s) to make Competitive Loans to the undersigned on _____,______,
[Competitive Loan Date] under said subsection 2.2 in the (respective)
amount(s) set forth on the attached list of Competitive Loans offered.
Very truly yours,
DOW XXXXX & COMPANY, INC.
By: _______________________
Name:
Title:
[Company to attach Competitive Loan offer list prepared
by Administrative Agent with accepted amount entered by the Company to
right of each Competitive Loan offer].
EXHIBIT E
FORM OF EXEMPTION CERTIFICATE
Reference is made to the 364-Day Amended and Restated Credit
Agreement, dated as of June 29, 1999 (as amended, supplemented or
otherwisemodified from time to time, the "Credit Agreement") among Dow
Xxxxx & Company, Inc., a Delaware corporation (the "Company"), the several
banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), The Chase Manhattan Bank,
as Administrative Agent, Westdeutsche Landesbank Girozentrale,
as Documentation Agent, and Fleet National Bank, as Syndication Agent.
Capitalized terms used herein that are not defined herein shall have the
meanings ascribed to them in the Credit Agreement.
______________________ (the "Non-U.S. Lender") is providing this
certificate pursuant to subsection 2.12(d) of the Credit Agreement. The
Non-U.S. Lender hereby represents and warrants that:
1. The Non-U.S. Lender is the sole record and beneficial owner
of the Loans or the obligations evidenced by Notes in respect of which it
is providing this certificate;
2. The Non-U.S. Lender is not a "bank" for purposes of Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code").
In this regard, the Non-U.S. Lender further represents and warrants that:
(a) the Non-U.S. Lender is not subject to regulatory or other
legal requirements as a bank in any jurisdiction;
(b) the Non-U.S. Lender has not been treated as a bank for
purposes of any tax, securities law or other filing or submission made to
any Governmental Authority, any application made to a rating agency or
qualification for any exemption from tax, securities law or other legal
requirements; and
(c) the Non-U.S. Lender is acquiring an interest in the Loans
or Notes for its own account, and the Non-U.S. Lender will not hold such an
interest, directly or indirectly, for or on behalf of, or as nominee for,
any bank.
3. The Non-U.S. Lender meets all of the requirements under
Code Section 871(h) or 881(c) to be eligible for a complete exemption from
withholding of taxes on interest payments made to it under the Credit
Agreement, including without limitation that it is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code); and
4. The Non-U.S. Lender shall promptly notify the Company
and the Administrative Agent if any of the representations and warranties
made herein are no longer true and correct.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[NAME OF NON-U.S. LENDER]
By: _______________________________
Name:
Title:
Date: ____________________
EXHIBIT F
FORM OF OPINION OF XXXXX X. XXXXXXX, ESQ.
______________________, 1999
The Chase Manhattan Bank,
as Administrative Agent
under the Agreement, as
hereinafter defined,
Westdeutsche Landesbank Girozentrale,
as Documentation Agent under
the Agreement,
Fleet National Bank, as Syndication
Agent under the Agreement
and
Each of the Lenders parties to the
Agreement
Ladies and Gentlemen:
In my capacity as General Counsel, I have acted as counsel for
Dow Xxxxx & Company, Inc., a Delaware corporation (the "Company"), in
connection with the execution and delivery of the 364-Day Amended and
Restated Credit Agreement, dated as of June 29, 1999, among Dow Xxxxx
& Company, Inc. (the "Company"), the Lenders parties thereto, The Chase
Manhattan Bank, as Administrative Agent, Westdeutsche Landesbank
Girozentrale, as Documentation Agent, and Fleet National Bank, as
Syndication Agent (as the same may be amended, supplemented or otherwise
modified, the "Agreement").
This opinion is delivered to you pursuant to Section 4 of
the Agreement. Terms used herein which are defined in the Agreement shall
have the respective meanings set forth in the Agreement, unless otherwise
defined herein.
In connection with this opinion, I have examined executed
copies of the Agreement and such corporate documents and records of the
Company and its Subsidiaries, certificates of public officials and officers
of the Company and its Subsidiaries, and such other documents, as I have
deemed necessary or appropriate for the purposes of this opinion. In
stating my opinion, I have assumed the genuineness of all signatures of,
and the authority of, persons signing the Agreement on behalf of parties
thereto other than the Company, the authenticity of all documents submitted
to me as originals and the conformity to
authentic original documents of all documents submitted to me as certified,
conformed or photostatic copies.
Based upon the foregoing, I am of the opinion that:
1. Each of the Company and its Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) has the corporate power and
authority and the legal right to own and operate its property, to
lease the property it operates under lease and to conduct the business
in which it is currently engaged and (c) to the best of my knowledge,
is duly qualified as a foreign corporation and in good standing under
the laws of each jurisdiction where its ownership, lease or operation
of property or the conduct of its business requires such qualification
and where the failure to be so qualified would have a material adverse
effect on the Company and its Subsidiaries taken as a whole.
2. The Company has the corporate power and authority to make,
deliver and perform the Agreement and to borrow thereunder and has taken
all necessary corporate action to authorize the borrowings on the terms
and conditions of the Agreement and to authorize the execution, delivery
and performance of the Agreement and any promissory notes that may be
issued after the date hereof to evidence the loans consistent with the
terms of the Agreement. No consent or authorization of, filing with,
or other act by or in respect of any Governmental Authority, is required
to be obtained by the Company in connection with the borrowings thereunder
or with the execution, delivery, performance, validity or enforceability
of the Agreement.
3. The Agreement has been duly executed and delivered on
behalf of the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar law
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law). No opinion is expressed as to the availability of
the remedy of specific performance.
4. The execution, delivery and performance of the Agreement
by the Company and the use of the proceeds of the borrowings thereunder
as provided therein, will not violate any provision of any existing law
or regulation applicable to the Company, or, to the best of my knowledge,
of any order, judgment, award or decree of any court, arbitrator or
governmental authority binding upon or applicable to the Company, or of
the Certificate of Incorporation or By-Laws of the Company, or, to the
best of my knowledge, of any securities issued by the Company, or, to the
best of my knowledge, of any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking by which the Company or any of its
Subsidiaries or any of their respective assets may be bound, and, to the
best of my knowledge, will not result in or require the creation or
imposition of any Lien on any of its or their respective properties,
assets or revenues pursuant to the provisions of any such mortgage,
indenture, lease, contract or other agreement, instrument or undertaking.
5. To the best of my knowledge, no litigation, investigation
or proceeding of or before any court, arbitrator or governmental authority
is pending or threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to the Agreement or any of the transactions
contemplated thereby, or (b) which, if adversely determined, would have a
material adverse effect on the business, operations, property or financial
or other condition of the Company and its Subsidiaries taken as a whole.
6. The Company is not an "investment company" or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company," or a
"subsidiary company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
7. Assuming that the Company will comply with the provisions
of the Credit Agreement relating to the use of proceeds, the making of the
Loans under the Credit Agreement will not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
The opinions expressed herein are solely for the benefit of
the Administrative Agent, the Documentation Agent, the Syndication Agent
and the Lenders in connection with the Agreement and may not be relied on
in any manner or for any purpose by any other person or entity.
Very truly yours,
EXHIBIT G
FORM OF OFFICER'S CERTIFICATE
Pursuant to Section 4 of the 364-Day Amended and Restated
CreditAgreement, dated as of June 29, 1999, among Dow Xxxxx & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"), the undersigned ________________ and ______________________
of the Company hereby certify as follows:
1. The representations and warranties of the Company set forth
in the Credit Agreement or which are contained in any certificate, document
or financial or other statement furnished pursuant to or in connection with
the Credit Agreement are true and correct on and as of the date hereof with
the same effect as if made on the date hereof; and
2. On the date hereof, no Default or Event of Default (both
as defined in the Credit Agreement) has occurred and is continuing under
the Credit Agreement as of the date hereof or after giving effect to any
Loans to be made on the date hereof.
IN WITNESS WHEREOF, each of the undersigned has hereunto set
his name.
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
Date:
EXHIBIT H
FORM OF CERTIFICATE OF THE
SECRETARY OF THE COMPANY
Pursuant to Section 4 of the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999, among Dow Xxxxx & Company,
Inc. (the "Company"), the Lenders parties thereto, The Chase Manhattan
Bank, as Administrative Agent, Westdeutsche Landesbank Girozentrale, as
Documentation Agent, and Fleet National Bank, as Syndication Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"), the undersigned Secretary of the Company hereby certifies
as follows:
1. Attached hereto as Annex I is a true and complete copy
of resolutions duly adopted by the Board of Directors of the Company on
February 21, 1996, and such resolutions have not in any way been
rescinded or modified and have been in full force and effect since their
adoption to and including the date hereof and are now in full force and
effect; and such resolutions are the only corporate proceedings of the
Company now in force relating to or affecting the matters referred to
therein.
2. Attached hereto as Annex II is a true and complete copy
of the By-laws of the Company as in effect at all times since May 17, 1989,
to and including the date hereof.
3. Attached hereto as Annex III is a true and complete copy
of the Restated Certificate of Incorporation of the Company, as amended,
as in effect at all times since April 25, 1989, to and including the date
hereof, and no action has been taken to amend, repeal, modify or revoke
such certificate.
4. The following persons are now duly elected and qualified
officers of the Company, holding the offices indicated next to their
respective names below, and such officers have held such offices with the
Company at all times since the respective dates set forth opposite their
names, to and including the date hereof, and the signatures appearing
opposite their respective names below are the true and genuine signatures
of such officers, and each of such officers is duly authorized to execute
and deliver on behalf of the Company the Credit Agreement, any Notes of
the Company to be issued pursuant thereto and any certificate or other
document to be delivered by the company pursuant to the Credit Agreement
and to act as Responsible Officers on behalf of the Company under the
Credit Agreement:
Month & Year
Name Office Signature of Election
Xxxxxx X. Xxxxxx Executive Vice April 1999
President and Chief
Financial Officer
Xxxxxx X. Xxxxxx Vice President/Finance April 1999
Xxxxxx X. XxXxxxx Treasurer and Assistant April 1999
Secretary
IN WITNESS WHEREOF, the undersigned has hereunto set his
name and affixed the corporate seal of the Company.
Dated: June 29, 1999
Xxxxx X. Xxxxxxx
Executive Vice President
General Counsel and Secretary
(CORPORATE SEAL)
I, Xxxxxx X. Xxxxxx, Vice President/Finance of the Company,
hereby certify that Xxxxx X. Xxxxxxx, whose genuine signature appears above,
is, and has been at all times since April 21, 1999, a duly elected,
qualified and acting Secretary of the Company.
Dated: June 29, 1999
_________________________
Xxxxxx X. Xxxxxx
Vice President/Finance
EXHIBIT I
FORM OF
COMPETITIVE LOAN ASSIGNMENT
Reference is made to the 364-Day Credit Agreement, dated as
of June 29, 1999 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), among Dow Xxxxx & Company, Inc.
(the "Company"), the Lenders named therein, The Chase Manhattan Bank, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), Westdeutsche Landesbank Girozentrale, as Documentation Agent,
and Fleet National Bank, as Syndication Agent. Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, as of the Effective Date (as defined below), the Competitive
Loan (the "Assigned Loan") and any Note evidencing such Competitive Loan
described in Schedule 1 hereto.
2. The Assignor (a) 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 with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any Notes or
any other instrument or document furnished pursuant thereto, other than
that the Assignor has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear
of any such adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Company, any of its Subsidiaries or any other obligor or the
performance or observance by the Company, any of its Subsidiaries or any
other obligor of any of their respective obligations under the Credit
Agreement, any Notes or any other instrument or document furnished
pursuant hereto or thereto; and (c) attaches any Notes held by it
evidencing the Assigned Loan and (i) requests that the Administrative
Agent, upon request by the Assignee, exchange the attached Notes for a
new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in any Note evidencing the Assigned Loan, requests
that the Administrative Agent exchange the attached Notes for a new
Note or Notes payable to the Assignor, in each case in amounts which
reflect the assignment being made hereby (and after giving effect to
any other assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Competitive Loan Assignment; (b)
confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements delivered pursuant to subsection
3.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Competitive Loan Assignment; (c) agrees that it will, independently
and without reliance upon the Assignor, the Administrative Agent or any
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 permitted by the Credit Agreement, any Notes
or any other instrument or document furnished pursuant hereto or thereto;
(d) appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers and discretion under
the Credit Agreement, any Notes or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the
terms and conditions contained in the Credit Agreement applicable to it
(including, without limitation, the terms and conditions contained in
subsections 9.6 and 9.7 thereof) and will perform in accordance with
such terms all the obligations which by the terms of the Credit Agreement
are required to be performed by it, including its obligations pursuant
to subsection 2.12 of the Credit Agreement.
4. The effective date of this Competitive Loan Assignment
shall be the Effective Date of Assignment described in Schedule 1 hereto
(the "Effective Date"). Following the execution of this Competitive Loan
Assignment, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not,unless
otherwise agreed to by the Administrative Agent, be earlier than five
Business Days after the date of such acceptance and recording by the
Administrative Agent).
5. [Option 1: Upon such acceptance and recording, from
and after the Effective Date, the Assignor shall act as collection agent
for the Assignee hereunder, and the Administrative Agent shall pay all
amounts (including payments of principal, interest, fees and other
amounts) received from the Company which are allocable to the Assigned
Loan and any Note evidencing such Assigned Loan directly to the Assignor
without any further liability to the Assignee.] [Option 2: Upon such
acceptance and recording, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the Assigned
Loan and any Note evidencing such Assigned Loan (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to the Effective Date and to the Assignee for amounts
which have accrued subsequent to the Effective Date.]
6. Any payments to the Competitive Loan Assignee in
respect of the Assigned Loan shall be made in accordance with the payment
instructions set forth on Schedule 2 hereto.
7. This Competitive Loan Assignment shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Competitive Loan Assignment to be executed as of the date first above
written by their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Competitive Loan Assignment
Name of Assignor:___________________
Name of Assignee:___________________
Address for Notices:________________
Contact: ___________________________
Title: _____________________________
Telephone No.: _____________________
Fax No.: ___________________________
Lending Office Address:
Contact:
Title:
Telephone No.:
Fax No.:
Effective Date of Assignment:
____________________________ _________________________ _____________
Competitive Loan Assigned Amount Assigned Maturity Date
$_________
__________________________ _________________________
[Name of Assignee] [Name of Assignee}
By: By:
Name: Name:
Title: Title:
Accepted:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
Name:
Title:
Schedule 2
to Competitive Loan Assignment
Payment Instructions
EXHIBIT J
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Amended and Restated
Credit Agreement, dated as of June 29, 1999 (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"),
among Dow Xxxxx & Company, Inc. (the "Company"), the Lenders named
therein, The Chase Manhattan Bank, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), Westdeutsche
Landesbank Girozentrale, as Documentation Agent, and Fleet National Bank,
as Syndication Agent. Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree
as follows:
1. The Assignor hereby irrevocably sells and assigns to
the Assignee without recourse to the Assignor, and the Assignee hereby
irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, as of the Effective Date (as defined below), the interest
described in Schedule 1 hereto (the "Assigned Interest") in and to the
Assignor's rights and obligations under the Credit Agreement.
2. The Assignor (a) 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
with respect to the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, any Notes or
any other instrument or document furnished pursuant thereto, other than
that the Assignor has not created any adverse claim upon the interest
being assigned by it hereunder and that such interest is free and clear
of any such adverse claim; (b) makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Company, any of its Subsidiaries or any other obligor or the performance
or observance by the Company, any of its Subsidiaries or any other
obligor of any of their respective obligations under the Credit Agreement,
any Notes or any other instrument or document furnished pursuant hereto
or thereto; and (c) attaches any Notes held by it evidencing the Assigned
Interest and (i) requests that the Administrative Agent, upon request by
the Assignee, exchange the attached Notes for a new Note or Notes payable
to the Assignee and (ii) if the Assignor has retained any interest in any
Note evidencing the Assigned Interest, requests that the Administrative
Agent exchange the attached Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made
hereby (and after giving effect to any other assignments which have become
effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (b)
confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements delivered pursuant to subsection
3.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (c) agrees that it will, independently
and without reliance upon the Assignor, the Administrative 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 the Credit Agreement, any Notes or any
other instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the
Credit Agreement or any other instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental thereto; and
(e) agrees that it will be bound by the provisions of the Credit Agreement
and will perform in accordance with its terms all the obligations which
by the terms of the Credit Agreement are required to be performed by it
as a Lender, including its obligations pursuant to subsection 2.12 of the
Credit Agreement.
4. The effective date of this Assignment and Acceptance
shall be the Effective Date of Assignment described in Schedule 1 hereto
(the "Effective Date"). Following the execution of this Assignment and
Acceptance, it will be delivered to the Administrative Agent for
acceptance by it and recording by the Administrative Agent pursuant to
the Credit Agreement, effective as of the Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be earlier
than five Business Days after the date of such acceptance and recording
by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in
respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have
accrued to the Effective Date and to the Assignee for amounts which have
accrued subsequent to the Effective Date.
6. From and after the Effective Date, (a) 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 shall be bound by the provisions thereof, and (b)
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.
7. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above
written by their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor: ________________________
Name of Assignee: ________________________
Effective Date of Assignment: ____________
_____________________________ _________________________
Principal Amount Assigned Commitment Percentage Assigned
$________________ ___.________%
_____________________________ __________________________
[Name of Assignee] [Name of Assignee]
By: By:
Name: Name:
Title: Title:
__________________________
Calculate the Commitment Percentage that is assigned to at
least 15 decimal places and show as a percentage of the
aggregrate commitments of all Lenders.
Accepted: Consented To:
THE CHASE MANHATTAN BANK, as [DOW XXXXX & COMPANY, INC.]
Administrative Agent
By: By:
Name: Name:
Title: Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent
By:
Name:
Title:
