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EXHIBIT 10.4
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COMPETITIVE ADVANCE AND
REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 5, 1999
among
EG&G, INC.
THE LENDERS NAMED HEREIN
and
THE CHASE MANHATTAN BANK
as Administrative Agent
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CHASE SECURITIES INC.,
as Advisor and Lead Arranger
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[CS&M 6700.795]
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms............................................. 1
SECTION 1.02. Terms Generally........................................... 13
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments............................................... 14
SECTION 2.02. Loans..................................................... 14
SECTION 2.03. Competitive Bid Procedure................................. 17
SECTION 2.04. Standby Borrowing Procedure............................... 19
SECTION 2.05. Facility Fees............................................. 20
SECTION 2.06. Conversion and Continuation of Standby Borrowings......... 21
SECTION 2.07. Repayment of Loans; Evidence of Debt...................... 22
SECTION 2.08. Interest on Loans ........................................ 23
SECTION 2.09. Default Interest.......................................... 24
SECTION 2.10. Alternate Rate of Interest................................ 24
SECTION 2.11. Termination and Reduction of Commitments.................. 25
SECTION 2.12. Prepayment................................................ 25
SECTION 2.13. Reserve Requirements; Change in Circumstances............. 26
SECTION 2.14. Change in Legality........................................ 28
SECTION 2.15. Indemnity................................................. 29
SECTION 2.16. Pro Rata Treatment........................................ 29
SECTION 2.17. Sharing of Setoffs........................................ 30
SECTION 2.18. Payments.................................................. 31
SECTION 2.19. Duty To Mitigate; Assignment of Commitments Under
Certain Circumstances................................... 31
SECTION 2.20. Taxes..................................................... 32
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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SECTION 3.01. Corporate Existence and Power............................. 36
SECTION 3.02. Corporate and Governmental Authorization;
Contravention........................................... 36
SECTION 3.03. Binding Effect............................................ 36
SECTION 3.04. Financial Information..................................... 36
SECTION 3.05. Litigation................................................ 37
SECTION 3.06. Compliance with ERISA..................................... 37
SECTION 3.07. Taxes..................................................... 37
SECTION 3.08. Subsidiaries.............................................. 38
SECTION 3.09. Representations and Warranties of Each Borrowing
Subsidiary.............................................. 38
SECTION 3.10. Federal Reserve Regulations............................... 39
SECTION 3.11. Investment Company Act; Public Utility Holding
Company Act............................................. 39
SECTION 3.12. Environmental and Safety Matters.......................... 39
SECTION 3.13. Year 2000 Compliance...................................... 40
SECTION 3.14. No Material Adverse Change................................ 40
SECTION 3.15. Solvency.................................................. 41
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. All Borrowings............................................ 41
SECTION 4.02. Closing Date.............................................. 42
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary.............. 43
ARTICLE V
COVENANTS
SECTION 5.01. Information............................................... 44
SECTION 5.02. Corporate Existence; Businesses and Properties............ 46
SECTION 5.03. Insurance................................................. 46
SECTION 5.04. Litigation and Other Notices.............................. 46
SECTION 5.05. Maintaining Records; Access to Properties and
Inspections............................................. 47
SECTION 5.06. Fixed Charge Coverage..................................... 47
SECTION 5.07. Net Debt to Capitalization Ratio.......................... 47
SECTION 5.08. Negative Pledge........................................... 47
SECTION 5.09. Consolidations, Mergers and Sales of
Assets.................................................. 48
SECTION 5.10. Ownership of Margin Stock................................. 49
ARTICLE VI
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Contents, p. 3
Events of Default........................................................... 49
ARTICLE VII
Guarantee................................................................... 53
ARTICLE VIII
The Administrative Agent.................................................... 56
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices................................................... 59
SECTION 9.02. Survival of Agreement..................................... 59
SECTION 9.03. Binding Effect............................................ 60
SECTION 9.04. Successors and Assigns.................................... 60
SECTION 9.05. Expenses; Indemnity....................................... 63
SECTION 9.06. Applicable Law............................................ 64
SECTION 9.07. Waivers; Amendment........................................ 64
SECTION 9.08. Entire Agreement.......................................... 65
SECTION 9.09. Severability.............................................. 65
SECTION 9.10. Counterparts.............................................. 66
SECTION 9.11. Headings.................................................. 66
SECTION 9.12. Right of Setoff........................................... 66
SECTION 9.13. Jurisdiction; Consent to Service of Process............... 66
SECTION 9.14. Waiver of Jury Trial...................................... 67
SECTION 9.15. Addition of Borrowing Subsidiaries........................ 67
SECTION 9.16. Confidentiality........................................... 67
SECTION 9.17. Collateral ............................................... 68
SECTION 9.18. Interest Rate Limitation.................................. 68
EXHIBITS
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Administrative Questionnaire
Exhibit C Form of Assignment and Acceptance
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Contents, p. 4
Exhibit D-1 Form of Opinion of Xxxxxx Xxxxx, Esq.
Exhibit D-2 Form of Opinion of Xxxxxx Xxxxx, Esq.
Exhibit E Form of Borrowing Subsidiary Agreement
SCHEDULES
Schedule 2.01 Commitments
Schedule 3.08 Subsidiaries
Schedule 3.12(a) Environmental and Safety Matters
Schedule 3.12(b) Environmental and Safety Matters
Schedule 3.12(c) Environmental and Safety Matters
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COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY
AGREEMENT (the "Agreement") dated as of March 5, 1999, among
EG&G, INC., a Massachusetts corporation (the "Company"), the
Borrowing Subsidiaries (as such term is defined herein;
together with the Company, the "Borrowers"), the lenders
listed in Schedule 2.01 (the "Lenders") and THE CHASE
MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
The Lenders have been requested to extend credit to the Borrowers to
enable them to borrow on a standby revolving credit basis on and after the date
hereof and at any time and from time to time prior to the Termination Date a
principal amount not in excess of $250,000,000 at any time outstanding. The
Lenders have also been requested to provide a procedure pursuant to which the
Borrowers may invite the Lenders to bid on an uncommitted basis on short-term
borrowings by the Borrowers. The proceeds of all such borrowings are to be used
by the Borrowers for general corporate purposes, including commercial paper
back-up and to finance acquisitions, and to provide working capital for use in
the ordinary course of their businesses. The Lenders are willing to extend such
credit on the terms and subject to the conditions herein set forth. Capitalized
terms used but not defined herein shall have the meanings assigned to such terms
in Article I.
Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR BORROWING" shall mean a Borrowing comprised of ABR Loans.
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"ABR LOAN" shall mean any Standby Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"ADMINISTRATIVE QUESTIONNAIRE" shall mean an Administrative
Questionnaire in the form of Exhibit B hereto.
"AFFILIATE" shall mean, when used with respect to a specified person,
another person that directly or indirectly controls or is controlled by or is
under common control with the person specified.
"ALTERNATE BASE RATE" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective on the date
such change is publicly announced as effective. "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as released on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so released for any
day which is a Business Day, the arithmetic average (rounded upwards to the next
1/100th of 1%), as determined by the Administrative Agent, of the quotations for
the day of such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
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"APPLICABLE PERCENTAGE" shall mean on any date, with respect to
Eurodollar Standby Loans or with respect to the Facility Fee, as the case may
be, the applicable percentage set forth below under the caption "Eurodollar
Spread" or "Facility Fee Percentage", as the case may be, based upon the Ratings
in effect on such date:
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RATING EURODOLLAR SPREAD FACILITY FEE
PERCENTAGE
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CATEGORY 1
Aa3 or higher by Moody's; .250% .050%
AA- or higher by S&P
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CATEGORY 2
A1 or A2 by Moody's; .320% .080%
A+ or A by S&P
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CATEGORY 3
A3 by Moody's; .400% .100%
A- by S&P
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CATEGORY 4
Baa1 by Moody's; .475% .125%
BBB+ by S&P
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CATEGORY 5
Baa2 by Moody's; .600% .150%
BBB by S&P
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CATEGORY 6
Baa3 by Moody's; .700% .175%
BBB- by S&P
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CATEGORY 7
Ba1 or lower by Moody's; .750% .250%
BB+ or lower by S&P
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For purposes of the foregoing, (i) if the Ratings shall fall within different
Categories, the Applicable Percentage shall be based upon the higher of the two
Categories; PROVIDED, HOWEVER, that if the difference in the Ratings is greater
than one Category, the Applicable Percentage will be based on the Category which
is one Category below the higher Rating; (ii) if no Ratings exist, the
Applicable Percentage shall be
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based upon Category 7, and (iii) if any Rating shall be changed (other than as a
result of a change in the rating system of Moody's or S&P), such change shall be
effective as of the date on which it is first announced by the rating agency
making such change. Each such change in the Applicable Percentage shall apply
during the period commencing on the effective date of such change and ending on
the date immediately preceding the effective date of the next such change. If
the rating system of Moody's or S&P shall change, or if either such rating
agency shall cease to be in the business of rating corporate debt obligations,
the parties hereto shall negotiate in good faith to amend the references to
specific ratings in this definition to reflect such changed rating system or the
non-availability of ratings from such rating agency, and pending the
effectiveness of any such amendment the Applicable Percentage shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"ASSIGNMENT AND ACCEPTANCE" shall mean an assignment and acceptance
entered into by a Lender and an assignee in the form of Exhibit C.
"BOARD" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the Company
or any duly authorized committee thereof.
"BORROWING" shall mean a group of Loans of a single Type made by the
Lenders to a single Borrower (or, in the case of a Competitive Borrowing, by the
Lender or Lenders whose Competitive Bids have been accepted pursuant to Section
2.03) on a single date and as to which a single Interest Period is in effect.
"BORROWING SUBSIDIARY" shall mean any Subsidiary which shall have
executed and delivered to the Administrative Agent and each Lender a Borrowing
Subsidiary Agreement.
"BORROWING SUBSIDIARY AGREEMENT" shall mean an agreement, in the form
of Exhibit E hereto, duly executed by the Company and a Subsidiary.
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"BUSINESS DAY" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; PROVIDED, HOWEVER, that, when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"A CHANGE IN CONTROL" shall be deemed to have occurred if (a) any
person or group of persons shall have acquired beneficial ownership of more than
50% of the outstanding Voting Shares of the Company (within the meaning of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended, and
the applicable rules and regulations thereunder), or (b) during any period of 12
consecutive months, commencing before or after the date of this Agreement,
individuals who on the first day of such period were directors of the Company
(together with any replacement or additional directors who were nominated or
elected by a majority of directors then in office) cease to constitute a
majority of the Board of Directors of the Company.
"CHARGES" shall have the meaning assigned to such term in Section 9.18.
"CLOSING DATE" shall mean the date hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
"COMMITMENT" shall mean, with respect to each Lender, the commitment of
such Lender hereunder as set forth as of the Closing Date in Schedule 2.01
hereto as such Lender's Commitment may be permanently terminated or reduced from
time to time pursuant to Section 2.11. The Commitment of each Lender shall
automatically and permanently terminate on the Termination Date if not
terminated earlier pursuant to the terms hereof.
"COMPETITIVE BID" shall mean an offer by a Lender to make a Competitive
Loan pursuant to Section 2.03.
"COMPETITIVE BID ACCEPT/REJECT LETTER" shall mean a notification made
by a Borrower pursuant to Section 2.03(d) in the form of Exhibit A-4.
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"COMPETITIVE BID RATE" shall mean, as to any Competitive Bid, (i) in
the case of a Eurodollar Loan, the Margin, and (ii) in the case of a Fixed Rate
Loan, the fixed rate of interest offered by the Lender making such Competitive
Bid.
"COMPETITIVE BID REQUEST" shall mean a request made pursuant to Section
2.03 in the form of Exhibit A-1.
"COMPETITIVE BORROWING" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or Lenders
whose Competitive Bids for such Borrowing have been accepted under the bidding
procedure described in Section 2.03.
"COMPETITIVE LOAN" shall mean a Loan made pursuant to the bidding
procedure described in Section 2.03. Each Competitive Loan shall be a Eurodollar
Competitive Loan or a Fixed Rate Loan.
"CONSOLIDATED EBIT" shall mean, for any period, Consolidated Net Income
of the Company and its Consolidated Subsidiaries excluding the effect of
non-cash extraordinary items and accounting changes for such period, plus income
taxes during such period, plus the aggregate amount deducted in determining such
Consolidated Net Income for such period in respect of Consolidated Net Interest
Expense of the Company and its Consolidated Subsidiaries for such period, all
determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" shall mean, for any period, the consolidated
net income (or loss) of the Company and its Consolidated Subsidiaries for such
period, determined in accordance with GAAP.
"CONSOLIDATED NET INDEBTEDNESS" shall mean, for any date, (a) the sum
of all outstanding Indebtedness of the Company and its Consolidated Subsidiaries
as of such date less (b) the lesser of (i) $50,000,000 and (ii) Eligible
Investments as of such date, all determined on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED NET INTEREST EXPENSE" shall mean, for any period, (a) the
gross interest expense of the Company and its Consolidated Subsidiaries
(excluding the amortization of transaction costs) in respect of Indebtedness
included within
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clauses (i) through (iv) of the definition of Indebtedness for such period minus
(b) interest income for such period, all determined in accordance with GAAP.
"CONSOLIDATED SUBSIDIARY" shall mean, at any date, any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements as of such date.
"DEFAULT" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"DOLLARS" or "$" shall mean lawful money of the United States of
America.
"ELIGIBLE INVESTMENTS" shall mean:
(a) cash and cash equivalents;
(b) direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America
(or any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof by the
Company or any Subsidiary;
(c) investments in money market funds the assets of which are invested
in obligations of the type described in (b) above (irrespective of
maturity); and
(d) other money market investments offered by any of the Lenders or a
commercial bank having the highest credit rating available from Standard &
Poor's Corporation or Xxxxx'x Investors Service, Inc. and having maturities
of less than 90 days.
"ENVIRONMENTAL LAWS" shall have the meaning assigned to such term in
Section 3.12(a).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
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"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414 of the Code.
"EURODOLLAR BORROWING" shall mean a Borrowing comprised of Eurodollar
Loans.
"EURODOLLAR COMPETITIVE LOAN" shall mean any Competitive Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"EURODOLLAR LOAN" shall mean any Eurodollar Competitive Loan or
Eurodollar Standby Loan.
"EURODOLLAR STANDBY LOAN" shall mean any Standby Loan bearing interest
at a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II.
"EVENT OF DEFAULT" shall have the meaning assigned to such term in
Article VI.
"FACILITY FEE" shall have the meaning assigned to such term in Section
2.05(a).
"FINANCIAL OFFICER" of any corporation shall mean the chief financial
officer, principal accounting officer, treasurer or assistant treasurer of such
corporation.
"FIVE-YEAR FACILITY" shall mean the 5-Year Competitive Advance and
Revolving Credit Facility Agreement dated as of March 21, 1994 and amended from
time to time, among the Company, certain of the Subsidiaries, the lenders named
therein and The Chase Manhattan Bank, as administrative agent.
"FIXED RATE BORROWING" shall mean a Borrowing comprised of Fixed Rate
Loans.
"FIXED RATE LOAN" shall mean any Competitive Loan bearing interest at a
fixed percentage rate per annum (expressed in the form of a decimal to no more
than four decimal places) specified by the Lender making such Loan in its
Competitive Bid.
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"GAAP" shall mean generally accepted accounting principles, applied on
a consistent basis.
"GOVERNMENTAL AUTHORITY" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"GUARANTEED OBLIGATIONS" shall mean the principal of and interest on
the Loans made to, and the other obligations, monetary or otherwise, of, the
Borrowing Subsidiaries under this Agreement.
"INDEBTEDNESS" of any person shall mean at any date, without
duplication, (i) all obligations of such person for borrowed money (but not
including non-recourse obligations of such person), (ii) all obligations of such
person evidenced by bonds, debentures, notes or other similar instruments,
except trade payables and reimbursement obligations in respect of performance
bonds and standby letters of credit to the extent the obligations underlying
such letters of credit would not be considered Indebtedness, all of which arise
in the ordinary course of business, (iii) all obligations of such person to pay
the deferred purchase price of property or services, except trade accounts
payable and accrued expenses arising in the ordinary course of business, (iv)
all obligations of such person as lessee under capital leases, (v) all
Indebtedness of others secured by a Lien on any asset of such person (but not
including non-recourse obligations of such person) and (vi) all Indebtedness of
others guaranteed by such person.
"INFORMATION" shall mean any materials, documents and information
(other than annual reports, prospectuses, proxy statements and other materials
distributed to the Company's shareholders) that the Company or any of its
Subsidiaries may have furnished or may hereafter furnish to the Administrative
Agent or any Lender in connection with Sections 4.03(d), 5.01, 5.04 and 5.05 of
this Agreement.
"INTEREST PAYMENT DATE" shall mean (i) as to any Eurodollar Loan for
which the Interest Period is 1, 2 or 3 months, the last day of the Interest
Period, (ii) as to any Eurodollar Loan for which the Interest Period is 6
months, the last day of the Interest Period and the date that would be the last
day of an Interest Period commencing on the same date but having a duration of 3
months, (iii) as to any ABR
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Loan, the last day of March, June, September and December in each year, or if
such day is not a Business Day, the next succeeding Business Day and (iv) as to
any Fixed Rate Loan, the last day of the Interest Period applicable thereto.
"INTEREST PERIOD" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter, as the Borrower may elect, (b) as to any ABR
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the next succeeding March 31, June 30,
September 30 or December 31, or, if earlier, on the Maturity Date or the date
such Borrowing is repaid or prepaid in accordance with Section 2.07 or Section
2.12 and (c) as to any Fixed Rate Borrowing, the period commencing on the date
of such Borrowing and ending on the date specified in the Competitive Bids in
which the offers to make the Fixed Rate Loans comprising such Borrowing were
extended, which shall not be earlier than seven days after the date of such
Borrowing or later than 360 days after the date of such Borrowing; PROVIDED,
HOWEVER, that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless, in the case of Eurodollar Loans only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day. Interest shall accrue from and including
the first day of an Interest Period to but excluding the last day of such
Interest Period.
"LIBO RATE" shall mean, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the arithmetic average of the rates at which
dollar deposits approximately equal in principal amount to (i) in the case of a
Standby Borrowing, the Administrative Agent's portion of such Eurodollar
Borrowing and (ii) in the case of a Competitive Borrowing, a principal amount
that would have been the Administrative Agent's portion of such Competitive
Borrowing had such Competitive Borrowing been a
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Standby Borrowing, and for a maturity comparable to such Interest Period are
offered to the principal London offices of the Administrative Agent (or, if the
Administrative Agent does not at the time maintain a London office, the
principal London office of any Affiliate of the Administrative Agent) in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"LIEN" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind whatsoever (including any conditional sale or other
title retention agreement, any lease in the nature thereof and the filing of or
agreement to give any financing statement under the Uniform Commercial Code of
any jurisdiction).
"LOAN" shall mean a Competitive Loan or a Standby Loan, whether made as
a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as permitted hereby.
"MARGIN" shall mean, as to any Eurodollar Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to no more
than four decimal places) to be added to or subtracted from the LIBO Rate in
order to determine the interest rate applicable to such Loan, as specified in
the Competitive Bid relating to such Loan.
"MARGIN REGULATIONS" shall mean Regulations U and X of the Board as
from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"MARGIN STOCK" shall have the meaning given such term under Regulation
U of the Board.
"MATERIAL ADVERSE EFFECT" shall mean a materially adverse effect on the
business, assets, operations or condition, financial or otherwise, of the
Company and its Consolidated Subsidiaries taken as a whole.
"MATURITY DATE" shall mean March 2, 2001.
"MAXIMUM RATE" shall have the meaning assigned to such term in Section
9.18.
"MOODY'S" shall mean Xxxxx'x Investors Service, Inc., or any of its
successors.
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"MULTIEMPLOYER PLAN" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Code Section 414) is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation to
make contributions.
"NEW LENDING OFFICE" shall have the meaning assigned to such term in
Section 2.20(g).
"NON-U.S. LENDER" shall mean any Lender (or Transferee) that is
organized under the laws of a jurisdiction other than the United States, any
State thereof or the District of Columbia.
"OTHER TAXES" shall have the meaning assigned to such term in Section
2.20(b).
"PERSON" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"PLAN" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code that is maintained for current or former employees, or any
beneficiary thereof, of the Company or any ERISA Affiliate.
"RATINGS" shall mean the ratings from time to time established by
Moody's and S&P for senior, unsecured, non-credit-enhanced long-term debt of the
Company.
"REGISTER" shall have the meaning given such term in Section 9.04(d).
"REGULATION D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
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"REPORTABLE EVENT" shall mean any reportable event as defined in
Section 4043(b) of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"REQUIRED LENDERS" shall mean, at any time, Lenders having Commitments
representing more than 50% of the Total Commitment or, for purposes of
acceleration pursuant to clause (ii) of Article VI, Lenders holding Loans
representing more than 50% of the aggregate principal amount of the Loans
outstanding.
"S&P" shall mean Standard and Poor's Rating Group, a division of The
XxXxxx-Xxxx Companies, Inc., or any of its successors.
"SHAREHOLDERS' EQUITY" shall mean, with respect to the Company at any
date, (a) the sum of (i) common stock and preferred stock taken at par or stated
value at such date, (ii) capital in excess of par value at such date, (iii)
cumulative translation adjustments and other adjustments required by GAAP at
such date and (iv) retained earnings (or deficit) at such date minus (b)
treasury stock at such date, all determined in accordance with GAAP.
"STANDBY BORROWING" shall mean a Borrowing consisting of simultaneous
Standby Loans from each of the Lenders.
"STANDBY BORROWING REQUEST" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-5.
"STANDBY LOANS" shall mean the revolving loans made pursuant to Section
2.04. Each Standby Loan shall be a Eurodollar Standby Loan or an ABR Loan.
"SUBSIDIARY" shall mean, with respect to any person (the "parent"), any
corporation, association or other business entity of which securities or other
ownership interests representing more than 50% of the ordinary voting power are,
at the time as of which any determination is being made, owned or controlled by
the parent or one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent.
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"SUBSIDIARY" shall mean a subsidiary of the Company.
"TAXES" shall have the meaning assigned to such term in Section
2.20(a).
"TERMINATION DATE" shall mean March 3, 2000.
"TOTAL COMMITMENT" shall mean, at any time, the aggregate amount of
Commitments of all the Lenders, as in effect at such time.
"TRANSFEREE" shall have the meaning assigned to such term in Section
2.20(a).
"TYPE", when used in respect of any Loan or Borrowing, shall refer to
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "RATE" shall include the LIBO
Rate, the Alternate Base Rate and the Fixed Rate.
"VOTING SHARES" shall mean, as to any corporation, outstanding shares
of stock of any class of such corporation entitled to vote in the election of
directors, excluding shares entitled so to vote only upon the happening of some
contingency.
"WITHDRAWAL LIABILITY" shall mean liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. TERMS GENERALLY. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
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be construed in accordance with GAAP, as in effect from time to time; PROVIDED,
HOWEVER, that for purposes of determining compliance with any covenant set forth
in Article V, such terms shall be construed in accordance with GAAP as in effect
on the date hereof applied on a basis consistent with the application used in
preparing the Company's audited financial statements referred to in Section
3.04.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, to make Standby Loans to the Borrowers, at
any time and from time to time on and after the Closing Date hereof and until
the earlier of the Termination Date and the termination of the Commitment of
such Lender, in an aggregate principal amount at any time outstanding not to
exceed such Lender's Commitment minus the amount by which the Competitive Loans
outstanding at such time shall be deemed to have used such Commitment pursuant
to Section 2.16, subject, however, to the conditions that (i) at no time shall
(A) the sum of (x) the outstanding aggregate principal amount of all Standby
Loans made by all Lenders plus (y) the outstanding aggregate principal amount of
all Competitive Loans made by all Lenders exceed (B) the Total Commitment and
(ii) at all times the outstanding aggregate principal amount of all Standby
Loans made by each Lender shall equal the product of (A) the percentage which
its Commitment represents of the Total Commitment times (B) the outstanding
aggregate principal amount of all Standby Loans.
Within the foregoing limits, the Borrowers may borrow, pay or prepay
and reborrow Standby Loans hereunder, on and after the Closing Date and prior to
the Termination Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. LOANS. (a) Each Standby Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their respective Commitments; PROVIDED, HOWEVER, that the failure of any Lender
to make any Standby Loan shall not in itself relieve
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any other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender
to make any Loan required to be made by such other Lender). Each Competitive
Loan shall be made in accordance with the procedures set forth in Section 2.03.
The Standby Loans or Competitive Loans comprising any Borrowing shall be in an
aggregate principal amount which is an integral multiple of $1,000,000 and not
less than $5,000,000 (or an aggregate principal amount equal to the remaining
balance of the available Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of
Eurodollar Competitive Loans or Fixed Rate Loans, and each Standby Borrowing
shall be comprised entirely of Eurodollar Standby Loans or ABR Loans, as any
Borrower may request pursuant to Section 2.03 or 2.04, as applicable. Each
Lender may at its option make any Eurodollar Loan by causing any domestic or
foreign branch or Affiliate of such Lender to make such Loan; PROVIDED that (i)
any exercise of such option shall not affect the obligation of such Borrower to
repay such Loan in accordance with the terms of this Agreement and (ii) the
Borrowers shall not be liable for increased costs under Section 2.13 or 2.14 to
the extent that (A) such costs could be avoided by the use of a different branch
or Affiliate to make Eurodollar Loans and (B) such use would not, in the
judgment of such Lender, entail any expense for which such Lender shall not be
indemnified hereunder. Borrowings of more than one Type may be outstanding at
the same time; PROVIDED, HOWEVER, that no Borrowing shall be requested which, if
made, would result in an aggregate of more than 10 separate Standby Borrowings
comprised of Eurodollar Loans being outstanding hereunder at any one time. For
purposes of the foregoing, Borrowings having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Borrowings.
(c) Subject to Section 2.02(d), each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 12:00 noon, New York City time, and the Administrative Agent
shall by 3:00 p.m., New York City time, credit the amounts so received to the
general deposit account of the applicable Borrower with the Administrative Agent
or, if a Borrowing shall not occur on such date because any condition
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precedent herein specified shall not have been met, return the amounts so
received to the respective Lenders. Competitive Loans shall be made by the
Lender or Lenders whose Competitive Bids therefor are accepted pursuant to
Section 2.03 in the amounts so accepted. Standby Loans shall be made by the
Lenders pro rata in accordance with Section 2.16. Unless the Administrative
Agent shall have received notice from a Lender prior to the date of any
Borrowing that such Lender will not make available to the Administrative Agent
such Lender's portion of such Borrowing, the Administrative Agent may assume
that such Lender has made such portion available to the Administrative Agent on
the date of such Borrowing in accordance with this paragraph (c) and the
Administrative Agent may, in reliance upon such assumption, make available to
the applicable Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have made such portion available to the
Administrative Agent, such Lender and the applicable Borrower severally agree to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to such Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of such Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Effective Rate. If such Lender shall
repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender's Loan as part of such Borrowing for purposes of this
Agreement.
(d) Any Borrower may refinance all or any part of any Borrowing with a
Borrowing of the same or a different Type made pursuant to Section 2.03 or
Section 2.04, subject to the conditions and limitations set forth herein and
elsewhere in this Agreement, including refinancings of Competitive Borrowings
with Standby Borrowings and Standby Borrowings with Competitive Borrowings. Any
Borrowing or part thereof so refinanced shall be deemed to be repaid in
accordance with Section 2.07 with the proceeds of a new Borrowing hereunder and
the proceeds of the new Borrowing, to the extent they do not exceed the
principal amount of the Borrowing being refinanced, shall not be paid by the
Lenders to the Administrative Agent or by the Administrative Agent to the
applicable Borrower pursuant to Section 2.02(c); PROVIDED, HOWEVER, that (i) if
the principal amount extended by a Lender in a refinancing is greater than the
principal
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amount extended by such Lender in the Borrowing being refinanced, then such
Lender shall pay such difference to the Administrative Agent for distribution to
the Lender described in (ii) below, (ii) if the principal amount extended by a
Lender in the Borrowing being refinanced is greater than the principal amount
being extended by such Lender in the refinancing, the Administrative Agent shall
return the difference to such Lender out of amounts received pursuant to (i)
above and (iii) to the extent any Lender fails to pay the Agent amounts due from
it pursuant to (i) above, any Loan or portion thereof being refinanced with such
amounts shall not be deemed repaid in accordance with Section 2.07 and shall be
payable by the Company.
SECTION 2.03. COMPETITIVE BID PROCEDURE. (a) In order to
request Competitive Bids, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Competitive Bid Request in the form of
Exhibit A-1 hereto, to be received by the Administrative Agent (i) in the case
of a Eurodollar Competitive Borrowing, not later than 10:00 a.m., New York City
time, four Business Days before a proposed Competitive Borrowing and (ii) in the
case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time,
one Business Day before a proposed Competitive Borrowing. No ABR Loan shall be
requested in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit A-1 may be
rejected in the Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the applicable Borrower of such rejection by
telecopy. Each Competitive Bid Request shall refer to this Agreement and specify
whether the Borrowing then being requested is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing, the date of such Borrowing (which shall be a Business
Day), the aggregate principal amount thereof, which shall be in a minimum
principal amount of $5,000,000 and in an integral multiple of $1,000,000, and
the Interest Period with respect thereto (which may not end after the
Termination Date). Promptly after its receipt of a Competitive Bid Request that
is not rejected as aforesaid, the Administrative Agent shall invite by telecopy
(in the form set forth in Exhibit A-2 hereto) the Lenders to bid, on the terms
and conditions of this Agreement, to make Competitive Loans.
(b) Each Lender invited to bid may, in its sole discretion,
make one or more Competitive Bids to the applicable Borrower responsive to such
Borrower's Competitive Bid
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Request. Each Competitive Bid by a Lender must be received by the Administrative
Agent by telecopy, in the form of Exhibit A-3 hereto, (i) in the case of a
Eurodollar Competitive Borrowing, not later than 9:30 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the
day of a proposed Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform substantially to the
format of Exhibit A-3 may be rejected by the Administrative Agent, and the
Administrative Agent shall notify the Lender making such nonconforming bid of
such rejection as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (x) the principal amount (which shall be in a minimum
principal amount of $5,000,000 and in an integral multiple of $1,000,000 and
which may equal the entire principal amount of the Competitive Borrowing
requested) of the Competitive Loan or Loans that the Lender is willing to make,
(y) the Competitive Bid Rate or Rates at which the Lender is prepared to make
the Competitive Loan or Loans and (z) the Interest Period and the last day
thereof. If any Lender invited to bid shall elect not to make a Competitive Bid,
such Lender shall so notify the Administrative Agent by telecopy (I) in the case
of Eurodollar Competitive Loans, not later than 9:30 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing, and (II) in the
case of Fixed Rate Loans, not later than 9:30 a.m., New York City time, on the
day of a proposed Competitive Borrowing; PROVIDED, HOWEVER, that failure by any
Lender to give such notice shall not cause such Lender to be obligated to make
any Competitive Loan as part of such Competitive Borrowing. A Competitive Bid
submitted by a Lender pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the applicable
Borrower, by telecopy, of all the Competitive Bids made, the Competitive Bid
Rate and the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Lender that made each bid. The
Administrative Agent shall send a copy of all Competitive Bids to such Borrower
for its records as soon as practicable after completion of the bidding process
set forth in this Section 2.03.
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(d) The applicable Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (c) above. Such Borrower shall notify
the Administrative Agent by telephone, confirmed by telecopy in the form of a
Competitive Bid Accept/Reject Letter, whether and to what extent it has decided
to accept or reject any of or all the bids referred to in paragraph (c) above,
(x) in the case of a Eurodollar Competitive Borrowing, not later than 10:30
a.m., New York City time, three Business Days before a proposed Competitive
Borrowing, and (y) in the case of a Fixed Rate Borrowing, not later than 10:30
a.m., New York City time, on the day of a proposed Competitive Borrowing;
PROVIDED, HOWEVER, that (i) the failure of such Borrower to give such notice
shall be deemed to be a rejection of all the bids referred to in paragraph (c)
above, (ii) such Borrower shall not accept a bid made at a particular
Competitive Bid Rate if it has decided to reject a bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids
accepted by such Borrower shall not exceed the principal amount specified in the
Competitive Bid Request, (iv) if such Borrower shall accept a bid or bids made
at a particular Competitive Bid Rate but the amount of such bid or bids shall
cause the total amount of bids to be accepted to exceed the amount specified in
the Competitive Bid Request, then such Borrower shall accept a portion of such
bid or bids in an amount equal to the amount specified in the Competitive Bid
Request less the amount of all other Competitive Bids accepted with respect to
such Competitive Bid Request, which acceptance, in the case of multiple bids at
such Competitive Bid Rate, shall be made pro rata in accordance with the amount
of each such bid at such Competitive Bid Rate, and (v) except pursuant to clause
(iv) above, no bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in a minimum principal amount of $5,000,000 and an integral
multiple of $1,000,000; PROVIDED FURTHER, HOWEVER, that if a Competitive Loan
must be in an amount less than $5,000,000 because of the provisions of clause
(iv) above, such Competitive Loan may be for a minimum of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid Rate
pursuant to clause (iv) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner which shall be in the discretion of the applicable
Borrower. A notice given pursuant to this paragraph (d) shall be irrevocable.
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(e) The Administrative Agent shall promptly notify each bidding Lender
whether or not its Competitive Bid has been accepted (and if so, in what amount
and at what Competitive Bid Rate) by telecopy, and each successful bidder will
thereupon become bound, subject to the other applicable conditions hereof, to
make the Competitive Loan or Loans in respect of which its bid has been
accepted.
(f) A Competitive Bid Request shall not be made within five Business
Days after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a Competitive Bid
in its capacity as a Lender, it shall submit such bid directly to the applicable
Borrower one quarter of an hour earlier than the latest time at which the other
Lenders are required to submit their bids to the Administrative Agent pursuant
to paragraph (b) above.
(h) All notices required by this Section 2.03 shall be given in
accordance with Section 9.01.
SECTION 2.04. STANDBY BORROWING PROCEDURE. In order to request a
Standby Borrowing, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Standby Borrowing Request in the form of
Exhibit A-5 (a) in the case of a Eurodollar Standby Borrowing, not later than
10:30 a.m., New York City time, three Business Days before such Borrowing, and
(b) in the case of an ABR Borrowing, not later than 10:30 a.m., New York City
time, on the day of such Borrowing. No Fixed Rate Loan shall be requested or
made pursuant to a Standby Borrowing Request. Such notice shall be irrevocable
and shall in each case specify (i) whether the Borrowing then being requested is
to be a Eurodollar Standby Borrowing or an ABR Borrowing; (ii) the date of such
Standby Borrowing (which shall be a Business Day) and the amount thereof; and
(iii) if such Borrowing is to be a Eurodollar Standby Borrowing, the Interest
Period with respect thereto, which shall not end after the Termination Date. If
no election as to the Type of Standby Borrowing is specified in any such notice,
then the requested Standby Borrowing shall be an ABR Borrowing. If no Interest
Period with respect to any Eurodollar Standby Borrowing is specified in any such
notice, then the Borrower shall be deemed to have selected an Interest Period of
one
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month's duration. The Administrative Agent shall promptly advise the Lenders
of any notice given pursuant to this Section 2.04 and of each Lender's portion
of the requested Borrowing.
SECTION 2.05. FACILITY FEES. (a) The Company agrees to pay to each
Lender, through the Administrative Agent, on each March 31, June 30, September
30 and December 31 (with the first payment being due on March 31, 1999), on the
Termination Date, on the Maturity Date and on the date on which the Commitment
of such Lender shall be terminated as provided herein, a facility fee (a
"Facility Fee"), at a rate per annum equal to the Applicable Percentage from
time to time in effect (i) on the average daily amount of the Commitment of such
Lender, whether used or unused, on or prior to the Termination Date, and (ii) on
the daily average amount of the outstanding Loans of such Lender after the
Termination Date, in each case during the preceding quarter (or other period
commencing on the date of this Agreement, or ending with the Termination Date or
the Maturity Date or the date on which the Commitment of such Lender shall be
terminated). All Facility Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Facility Fee due to each
Lender shall commence to accrue on the date of this Agreement and shall cease to
accrue on the earlier of the Maturity Date and the date on which the Commitment
of such Lender shall have been terminated and the Loans of such Lender shall
have been repaid.
(b) All Facility Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders. Once paid, none of the Facility Fees shall be
refundable under any circumstances.
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SECTION 2.06. CONVERSION AND CONTINUATION OF STANDBY BORROWINGS. The
applicable Borrower shall have the right on or after the Termination Date, upon
prior irrevocable notice to the Administrative Agent, (a) not later than 11:00
a.m., New York City time, one Business Day prior to conversion, to convert any
Eurodollar Standby Borrowing into an ABR Borrowing, (b) not later than 11:00
a.m., New York City time, three Business Days prior to conversion or
continuation, to convert any ABR Borrowing into a Eurodollar Standby Borrowing
or to continue any Eurodollar Standby Borrowing as a Eurodollar Standby
Borrowing for an additional Interest Period, and (c) not later than 11:00 a.m.,
New York City time, three Business Days prior to conversion, to convert the
Interest Period with respect to any Eurodollar Standby Borrowing to another
permissible Interest Period subject in each case to the following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Standby Borrowing;
(ii) if less than all the outstanding principal amount of any Standby
Borrowing shall be converted or continued, the aggregate principal amount
of such Standby Borrowing converted or continued shall be an integral
multiple of $1,000,000 and not less than $5,000,000;
(iii) if any Eurodollar Standby Borrowing is converted at a time other
than the end of the Interest Period applicable thereto, the applicable
Borrower shall pay, upon demand, any amounts due to the Lenders pursuant to
Section 2.15;
(iv) any portion of a Standby Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as a
Eurodollar Standby Borrowing;
(v) any portion of a Eurodollar Standby Borrowing which cannot be
converted into or continued as a Eurodollar Standby Borrowing by reason of
clause (iv) above shall be automatically converted at the end of the
Interest Period in effect for such Borrowing into an ABR Borrowing; and
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(vi) no Interest Period may be selected for any Eurodollar Standby
Borrowing that would end later than the Maturity Date.
Each notice pursuant to this Section 2.06 shall be by hand delivery or
telecopier and irrevocable and shall refer to this Agreement and specify (A) the
identity and amount of the Standby Borrowing that the Borrower requests be
converted or continued, (B) whether such Standby Borrowing is to be converted to
or continued as a Eurodollar Standby Borrowing or an ABR Borrowing, (C) if such
notice requests a conversion, the date of such conversion (which shall be a
Business Day) and (D) if such Standby Borrowing is to be converted to or
continued as a Eurodollar Standby Borrowing, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a Eurodollar Standby Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. The Administrative Agent shall advise the other Lenders of any notice
given pursuant to this Section 2.06 and of each Lender's portion of any
converted or continued Standby Borrowing. If, with respect to any Interest
Period ending on or after the Termination Date, the applicable Borrower shall
not have given notice in accordance with this Section 2.06 to continue any
Standby Borrowing into a subsequent Interest Period (and shall not otherwise
have given notice in accordance with this Section 2.06 to convert such Standby
Borrowing), such Standby Borrowing shall, at the end of such Interest Period
(unless repaid pursuant to the terms hereof), automatically be continued into
such subsequent Interest Period as an ABR Borrowing.
SECTION 2.07 REPAYMENT OF LOANS; EVIDENCE OF DEBT. (a) Each Borrower
hereby agrees that the outstanding principal balance of each Standby Loan shall
be payable on the Maturity Date and that the outstanding principal balance of
each Competitive Loan shall be payable on the last day of the Interest Period
applicable thereto and on the Termination Date. Each Loan shall bear interest on
the outstanding principal balance thereof as set forth in Section 2.08.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by
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such Lender from time to time, including the amounts of principal and interest
payable and paid such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type of each Loan made
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from each Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraphs
(b) and (c) of this Section 2.07 shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the obligations
therein recorded; PROVIDED, HOWEVER, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in
any manner affect the obligations of the Borrowers to repay the Loans in
accordance with their terms.
SECTION 2.08. INTEREST ON LOANS. (a) Subject to the provisions of
Section 2.09, the Loans comprising each Eurodollar Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to (i) in the case of each Eurodollar Standby
Loan, the LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Percentage from time to time in effect plus an additional .125%
per annum on any day on which (A) the sum of (1) the outstanding aggregate
principal amount of all Standby Loans made by all Lenders plus (2) the
outstanding aggregate principal amount of all Competitive Loans made by all
Lenders exceeds (B) 33% of the Total Commitment and (ii) in the case of each
Eurodollar Competitive Loan, the LIBO Rate for the Interest Period in effect for
such Borrowing plus the Margin offered by the Lender making such Loan and
accepted by the applicable Borrower pursuant to Section 2.03.
(b) Subject to the provisions of Section 2.09, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, for
periods during which the Alternate Base Rate is determined by
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reference to the Prime Rate and 360 days for other periods) at a rate per annum
equal to the Alternate Base Rate.
(c) Subject to the provisions of Section 2.09, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number of days elapsed over a year of 360 days) equal to the fixed rate of
interest offered by the Lender making such Loan and accepted by the Borrower
pursuant to Section 2.03.
(d) Interest on each Loan shall be payable on each Interest Payment
Date applicable to such Loan except as otherwise provided in this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.09. DEFAULT INTEREST. If a Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, such Borrower shall owe interest, payable on demand, to the extent
permitted by law, on such defaulted amount up to (but not including) the date of
actual payment (after as well as before judgment) at a rate per annum (computed
as provided in Section 2.08(b)) equal to the Alternate Base Rate plus 2%.
SECTION 2.10. ALTERNATE RATE OF INTEREST. (a) In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Borrowing the Administrative Agent shall have
determined (i) that dollar deposits in the principal amounts of the Eurodollar
Loans comprising such Borrowing are not generally available in the London
interbank market or (ii) that reasonable means do not exist for ascertaining the
LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter,
give telecopy notice of such determination to the Borrowers and the Lenders. In
the event of any such determination under clauses (i) or (ii) above, until the
Administrative Agent shall have advised the Borrowers and the Lenders that the
circumstances giving rise to such notice no longer exist, (x) any request by a
Borrower for a Eurodollar Competitive Borrowing pursuant to Section 2.03 shall
be of no force and effect and shall be
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denied by the Administrative Agent and (y) any request by a Borrower for a
Eurodollar Standby Borrowing pursuant to Section 2.04 shall be deemed to be a
request for an ABR Borrowing.
(b) In the event a Lender notifies the Administrative Agent that the
rates at which dollar deposits are being offered will not adequately and fairly
reflect the cost to such Lender of making or maintaining its Eurodollar Loan
during such Interest Period, the Administrative Agent shall notify the
applicable Borrower of such notice and until the Lender shall have advised the
Administrative Agent that the circumstances giving rise to such notice no longer
exist, any request by such Borrower for a Eurodollar Standby Borrowing shall be
deemed a request for an ABR Borrowing for the same Interest Period with respect
to such Lender.
(c) Each determination by the Administrative Agent hereunder shall be
made in good faith and shall be conclusive absent manifest error.
SECTION 2.11. TERMINATION AND REDUCTION OF COMMITMENTS. (a) The
Commitments shall be automatically terminated on the Termination Date.
(b) Upon at least three Business Days' prior irrevocable telecopy
notice to the Administrative Agent, the Company may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Total Commitment; PROVIDED, HOWEVER, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of $1,000,000 and in a minimum
principal amount of $5,000,000 and (ii) no such termination or reduction shall
be made which would reduce the Total Commitment to an amount less than the
aggregate outstanding principal amount of the Loans.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Company shall pay to the Administrative Agent for the account of the Lenders, on
each date of reduction of any portion of the Total Commitment, the Facility Fees
on the amount of the Commitments so terminated accrued through the date of such
termination or reduction.
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SECTION 2.12. PREPAYMENT. (a) Each Borrower shall have the right at any
time and from time to time to prepay any Standby Borrowing, in whole or in part,
upon giving telecopy notice (or telephone notice promptly confirmed by telecopy)
to the Administrative Agent: (i) before 10:00 a.m., New York City time, three
Business Days prior to prepayment, in the case of Eurodollar Loans, and (ii)
before 10:00 a.m., New York City time, one Business Day prior to prepayment, in
the case of ABR Loans; PROVIDED, HOWEVER, that each partial prepayment shall be
in an amount which is an integral multiple of $1,000,000 and not less than
$5,000,000. No prepayment may be made in respect of any Competitive Borrowing.
(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.11(b), the Borrowers shall pay or prepay so much of the
Standby Borrowings as shall be necessary in order that the aggregate principal
amount of the Competitive Loans and Standby Loans outstanding will not exceed
the Total Commitment, after giving effect to such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and the
principal amount of each Borrowing (or portion thereof) to be prepaid, shall be
irrevocable and shall commit the applicable Borrower to prepay such Borrowing
(or portion thereof) by the amount stated therein on the date stated therein.
All prepayments under this Section 2.12 shall be subject to Section 2.15 but
otherwise without premium or penalty. All prepayments under this Section 2.12
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment.
SECTION 2.13. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by any Lender, or shall result in the
imposition on any Lender or the London interbank market of any other condition
affecting this Agreement, such Lender's Commitment or any Eurodollar Loan or
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Fixed Rate Loan made by such Lender, and the result of any of the foregoing
shall be to increase the cost to such Lender of making or maintaining any
Eurodollar Loan or Fixed Rate Loan or to reduce the amount of any sum received
or receivable by such Lender with respect to any Eurodollar Loan or Fixed Rate
Loan hereunder (whether of principal, interest or otherwise) by an amount deemed
by such Lender to be material, then such additional amount or amounts as will
compensate such Lender for such additional costs or reduction will be paid by
the Borrowers to such Lender upon demand. Notwithstanding the foregoing, no
Lender shall be entitled to request compensation under this paragraph with
respect to any Competitive Loan if the change giving rise to such request was
applicable to such Lender at the time of submission of the Competitive Bid
pursuant to which such Competitive Loan was made.
(b) If any Lender shall have determined that the adoption after the
date hereof of any law, rule, regulation or guideline arising out of the July
1988 report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement and Capital
Standards," or the adoption after the date hereof of any other law, rule,
regulation or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or administration of any of the foregoing by
any Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender (or any
lending office of such Lender) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on such Lender's capital as a consequence of this Agreement, such
Lender's Commitment or the Loans made by such Lender pursuant hereto to a level
below that which such Lender could have achieved but for such adoption, change
or compliance (taking into consideration such Lender's policies with respect to
capital adequacy) by an amount deemed by such Lender to be material, then from
time to time such additional amount or amounts as will compensate such Lender
for such reduction will be paid by the Borrowers to such Lender.
(c) A certificate of each Lender setting forth such amount or amounts
as shall be necessary to compensate such Lender as specified in paragraph (a) or
(b) above, as
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the case may be, shall be delivered to the Company promptly by such Lender upon
becoming aware of any costs pursuant to paragraphs (a) or (b) above and shall be
conclusive absent manifest error. The Company shall pay each Lender the amount
shown as due on any such certificate delivered by it within 10 days after its
receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Lender
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed. No Lender shall be entitled to compensation under
this Section 2.13 for any costs incurred or reduction suffered with respect to
any date unless such Lender shall have notified the Company that it will demand
compensation for such costs or reductions not more than 90 days after the later
of (i) such date and (ii) the date on which such Lender shall have become aware
of such costs or reductions. Notwithstanding any other provision of this Section
2.13, no Lender shall demand compensation for any increased cost or reduction
referred to above if it shall not at the time be the general policy or practice
of such Lender to demand such compensation in similar circumstances under
comparable provisions of other credit agreements, if any.
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SECTION 2.14. CHANGE IN LEGALITY. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to any Eurodollar Loan, then, by written notice
to the Company and to the Administrative Agent, such Lender may:
(i) declare that Eurodollar Loans will not thereafter be made by such
Lender hereunder, whereupon such Lender shall not submit a Competitive Bid
in response to a request for Eurodollar Competitive Loans and any request
for a Eurodollar Standby Borrowing shall, as to such Lender only, be deemed
a request for an ABR Loan unless such declaration shall be subsequently
withdrawn; and
(ii) require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be
automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal which would otherwise have been applied to
repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay the
ABR Loans made by such Lender in lieu of, or resulting from the conversion of,
such Eurodollar Loans.
(b) For purposes of this Section 2.14, a notice by any Lender shall be
effective as to each Eurodollar Loan, if lawful, on the last day of the Interest
Period currently applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt.
SECTION 2.15. INDEMNITY. The Borrowers shall indemnify each Lender
against any out-of-pocket loss or expense which such Lender may sustain or incur
as a consequence of (a) any failure to borrow or to refinance any Loan hereunder
after irrevocable notice of such borrowing or refinancing has been given
pursuant to Section 2.03 or 2.04,
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(b) any payment, prepayment or conversion, or assignment required under Section
2.19, of a Eurodollar Loan required by any other provision of this Agreement
(other than Section 2.14) or otherwise made or deemed made on a date other than
the last day of the Interest Period, if any, applicable thereto, (c) any default
in payment or prepayment of the principal amount of any Loan or any part thereof
or interest accrued thereon, as and when due and payable (at the due date
thereof, whether by scheduled maturity, acceleration, irrevocable notice of
prepayment or otherwise) or (d) the occurrence of any Event of Default,
including, in each such case, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing deposits
from third parties acquired to effect or maintain such Loan or any part thereof
as a Eurodollar Loan or a Fixed Rate Loan. Such loss or reasonable expense shall
include an amount equal to the excess, if any, as reasonably determined by such
Lender, of (i) its cost of obtaining the funds for the Loan being paid, prepaid,
refinanced or not borrowed or so assigned (assumed to be the LIBO Rate
applicable thereto or, in the case of a Fixed Rate Loan, the fixed rate of
interest applicable thereto) for the period from the date of such payment,
prepayment, refinancing or failure to borrow or refinance or such assignment, to
the last day of the Interest Period for such Loan (or, in the case of a failure
to borrow or refinance the Interest Period for such Loan which would have
commenced on the date of such failure) over (ii) the amount of interest (as
reasonably determined by such Lender) that would be realized by such Lender in
reemploying in similar investments the funds so paid, prepaid or not borrowed or
refinanced or so assigned for the remainder of such period or Interest Period,
as the case may be. A certificate of any Lender setting forth any amount or
amounts which such Lender is entitled to receive pursuant to this Section 2.15
shall be delivered to the Borrowers and shall be conclusive absent manifest
error.
SECTION 2.16. PRO RATA TREATMENT. Except as required under Section
2.13, each payment or prepayment of principal of any Standby Borrowing, each
payment of interest on the Standby Loans, each payment of the Facility Fees,
each reduction of the Commitments and each refinancing of any Borrowing with a
Standby Borrowing of any Type, shall be allocated pro rata among the Lenders in
accordance with their respective Commitments (or, if such Commitments shall have
expired or been terminated, in accordance with the respective
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principal amounts of their outstanding Standby Loans). Each payment of principal
of any Competitive Borrowing shall be allocated pro rata among the Lenders
participating in such Borrowing in accordance with the respective principal
amounts of their outstanding Competitive Loans comprising such Borrowing. Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among the Lenders participating in such Borrowing in accordance with the
respective amounts of accrued and unpaid interest on their outstanding
Competitive Loans comprising such Borrowing. For purposes of determining the
available Commitments of the Lenders at any time, each outstanding Competitive
Borrowing shall be deemed to have utilized the Commitments of the Lenders
(including those Lenders which shall not have made Loans as part of such
Competitive Borrowing) pro rata in accordance with such respective Commitments.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.17. SHARING OF SETOFFS. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim, or
pursuant to a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, obtain payment (voluntary
or involuntary) in respect of any Standby Loan or Loans as a result of which the
unpaid principal portion of its Standby Loans shall be proportionately less than
the unpaid principal portion of the Standby Loans of any other Lender, it shall
be deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the Standby Loans of such other Lender, so that the aggregate
unpaid principal amount of the Standby Loans and participations in the Standby
Loans held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Standby Loans then outstanding as the principal
amount of its Standby Loans prior to such exercise of banker's lien, setoff or
counterclaim or other event was to the principal amount of all Standby Loans
outstanding prior to such exercise of banker's lien, setoff or counterclaim or
other event; PROVIDED, HOWEVER, that, if any such purchase or purchases or
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adjustments shall be made pursuant to this Section 2.17 and the payment
giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. Any Lender holding a
participation in a Standby Loan deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing to such Lender by reason thereof as fully as if such Lender
had made a Standby Loan in the amount of such participation.
SECTION 2.18. PAYMENTS. (a) The Borrowers shall make each payment
(including principal of or interest on any Borrowing and any Facility Fees or
other amounts) hereunder from an account in the United States not later than
12:00 noon, New York City time, on the date when due in dollars to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, in
immediately available funds.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Facility Fees or other amounts) hereunder shall become due, or
otherwise would occur, on a day that is not a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of interest or Facility Fees, if
applicable.
SECTION 2.19. DUTY TO MITIGATE; ASSIGNMENT OF COMMITMENTS UNDER CERTAIN
CIRCUMSTANCES. (a) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to Section 2.13 or Section 2.20 or exercising its rights under
Section 2.14 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document requested by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
additional amounts which may thereafter accrue or avoid the circumstances giving
rise to such exercise and would not, in the sole determination of such Lender
(or Transferee), be otherwise disadvantageous to such Lender (or Transferee).
(b) In the event that any Lender shall have delivered a notice or
certificate pursuant to
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Section 2.10(b), 2.13 or 2.14, or the Borrower shall be required to make
additional payments to any Lender under Section 2.20, the Company shall have the
right, at its own expense (which shall include the processing and recordation
fee referred to in Section 9.04(b)), upon notice to such Lender and the
Administrative Agent, to require such Lender to transfer and assign without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04) all interests, rights and obligations contained hereunder to
another financial institution approved by the Administrative Agent (which
approval shall not be unreasonably withheld) which shall assume such
obligations; provided that (i) no such assignment shall conflict with any law,
rule or regulation or order of any Governmental Authority and (ii) the assignee
or the Borrowers, as the case may be, shall pay to the affected Lender in
immediately available funds on the date of such assignment the principal of and
interest accrued to the date of payment on the Loans made by it hereunder and
all other amounts accrued for its account or owed to it hereunder.
SECTION 2.20. TAXES. (a) Any and all payments to the Lenders hereunder
shall be made, in accordance with Section 2.18, free and clear of and without
deduction for any and all current or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, EXCLUDING (i)
income taxes imposed on the net income of the Administrative Agent or any Lender
(or any transferee or assignee thereof, including a participation holder (any
such entity a "Transferee")) and (ii) franchise taxes imposed on the net income
of the Administrative Agent or any Lender (or Transferee), in each case by the
jurisdiction under the laws of which the Administrative Agent or such Lender (or
Transferee) is organized or any political subdivision thereof (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, "Taxes"). If any Borrower shall be
required to deduct any Taxes from or in respect of any sum payable hereunder to
any Lender (or any Transferee) or the Administrative Agent, (i) the sum payable
shall be increased by the amount (an "additional amount") necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.20) such Lender (or Transferee) or
the Administrative Agent (as the case may be) shall receive an amount equal to
the sum it would have received had no such deductions been
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made, (ii) such Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrowers shall pay to the relevant Governmental
Authority in accordance with applicable law any current or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement
("Other Taxes").
(c) The Borrowers shall indemnify each Lender (or Transferee) and the
Administrative Agent for the full amount of Taxes and Other Taxes paid by such
Lender (or Transferee) or the Administrative Agent, as the case may be, and any
liability (including penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with respect thereto. A
certificate as to the amount of such payment or liability prepared by a Lender,
or the Administrative Agent on its behalf, absent manifest error, shall be
final, conclusive and binding for all purposes. Such indemnification shall be
made within 30 days after the date the Lender (or Transferee) or the
Administrative Agent, as the case may be, makes written demand therefor.
(d) If a Lender (or Transferee) or the Administrative Agent shall
become aware that it is entitled to claim a refund from a Governmental Authority
in respect of Taxes or Other Taxes as to which it has been indemnified by the
Borrowers, or with respect to which the Borrowers have paid additional amounts,
pursuant to this Section 2.20, it shall promptly notify the Borrowers of the
availability of such refund claim and shall, within 30 days after receipt of a
request by the Borrowers, make a claim to such Governmental Authority for such
refund at the Borrowers' expense. If a Lender (or Transferee) or the
Administrative Agent receives a refund (including pursuant to a claim for refund
made pursuant to the preceding sentence) in respect of any Taxes or Other Taxes
as to which it has been indemnified by the Borrowers or with respect to which
the Borrowers have paid additional amounts pursuant to this Section 2.20, it
shall within 30 days from the date of such receipt pay over such refund to the
Borrowers (but only to the extent of indemnity
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payments made, or additional amounts paid, by the Borrowers under this Section
2.20 with respect to the Taxes or Other Taxes giving rise to such refund),
without interest (other than interest paid by the relevant Governmental
Authority with respect to such refund); PROVIDED, HOWEVER, that the Borrowers,
upon the request of such Lender (or Transferee) or the Administrative Agent,
agree to repay the amount paid over to the Borrowers (plus penalties, interest
or other charges) to such Lender (or Transferee) or the Administrative Agent in
the event such Lender (or Transferee) or the Administrative Agent is required to
repay such refund to such Governmental Authority.
(e) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrowers to the relevant Governmental Authority, the
Borrowers will deliver to the Administrative Agent, at its address referred to
in Section 9.01, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section 2.20 shall
survive the payment in full of the principal of and interest on all Loans made
hereunder for a period of 3 years.
(g) Each Non-U.S. Lender shall deliver to the Company and the
Administrative Agent two copies of either United States Internal Revenue Service
Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. Federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code) of the Company and is not a
controlled foreign corporation related to the Company (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or reduced rate of, U.S.
Federal withholding tax on payments by the Company under this Agreement. Such
forms shall be delivered by each Non-U.S. Lender on or before the
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date it becomes a party to this Agreement (or, in the case of a Transferee that
is a participation holder, on or before the date such participation holder
becomes a Transferee hereunder) and on or before the date, if any, such Non-U.S.
Lender changes its applicable lending office by designating a different lending
office (a "New Lending Office"). In addition, each Non-U.S. Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Notwithstanding any other provision of this
Section 2.20(g), a Non-U.S. Lender shall not be required to deliver any form
pursuant to this Section 2.20(g) that such Non-U.S. Lender is not legally able
to deliver.
(h) The Borrowers shall not be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to paragraph (a) or (c) above to
the extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Lender became a
party to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; PROVIDED, HOWEVER,
that this clause (i) shall not apply to any Transferee or New Lending Office
that becomes a Transferee or New Lending Office as a result of an assignment,
participation, transfer or designation made at the request of the Company; and
PROVIDED FURTHER, HOWEVER, that this clause (i) shall not apply to the extent
the indemnity payment or additional amounts any Transferee, or Lender (or
Transferee) through a New Lending Office, would be entitled to receive (without
regard to this clause (i)) do not exceed the indemnity payment or additional
amounts that the person making the assignment, participation or transfer to such
Transferee, or Lender (or Transferee) making the designation of such New Lending
Office, would have been entitled to receive in the absence of such assignment,
participation, transfer or designation or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of paragraph (g) above.
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(i) Any Lender (or Transferee) claiming any indemnity payment or
additional amounts payable pursuant to this Section 2.20 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the sole determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
(j) Nothing contained in this Section 2.20 shall require any Lender (or
Transferee) or the Administrative Agent to make available any of its tax returns
(or any other information that it deems to be confidential or proprietary).
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to each of the Lenders that:
SECTION 3.01. CORPORATE EXISTENCE AND POWER. The Company and each
Borrowing Subsidiary is a corporation duly incorporated, validly existing and in
good standing under the laws of the jurisdiction of its incorporation, and has
all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted.
SECTION 3.02. CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION.
The execution, delivery and performance by the Company of this Agreement (a) is
within the Company's corporate powers, (b) has been duly authorized by all
necessary corporate action, (c) requires no action by or in respect of, or
filing with, any Governmental Authority and (d) does not (i) contravene, or
constitute a default under, any applicable provision of law or regulation either
of the United States or a particular state thereof or of the certificate of
incorporation or by-laws of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or (ii)
result in the creation or imposition of any Lien on any asset of the Company or
any of its Subsidiaries.
SECTION 3.03. BINDING EFFECT. This Agreement constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of the rights of its creditors
generally and subject to general legal and equitable principles with respect to
the availability of particular remedies.
SECTION 3.04. FINANCIAL INFORMATION. (a) The unaudited consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of January 3,
1999, and the related consolidated statements of earnings and changes in
financial position for the fiscal year then ended, a copy of which has been
delivered to each of the Lenders, fairly present, in conformity with GAAP, the
consolidated financial
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position of the Company and its Consolidated Subsidiaries as of such date and
their consolidated results of operations and changes in financial position for
such fiscal year.
(b) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of September 27, 1998, and the related unaudited
consolidated statements of earnings and changes in financial position for the
nine months then ended, set forth in the Company's quarterly report on Form 10-Q
for the fiscal quarter ended September 27, 1998, a copy of which has been
delivered to each of the Lenders, fairly present, in conformity with GAAP
applied on a basis consistent with the financial statements referred to in
paragraph (a) of this Section 3.04, the consolidated financial position of the
Company and its Consolidated Subsidiaries as of such date and their consolidated
results of operations and changes in financial position for such nine month
period (subject to normal year-end adjustments).
SECTION 3.05. LITIGATION. There is no action, suit or proceeding
pending against, or to the knowledge of the Company threatened against or
affecting, the Company or any of its Subsidiaries before any court or arbitrator
or any governmental body, agency or official in which there is a reasonable
possibility of a final adverse decision which could materially adversely affect
the business, consolidated financial position or consolidated results of
operations of the Company and its Consolidated Subsidiaries taken as a whole or
which in any manner draws into question the validity of this Agreement.
SECTION 3.06. COMPLIANCE WITH ERISA. The Company and each ERISA
Affiliate has fulfilled its obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the Code
relating to the Plans, and has not incurred any liability to the PBGC or a Plan
under Title IV of ERISA.
SECTION 3.07. TAXES. United States Federal income tax returns of the
Company and its Subsidiaries have been examined and closed through the fiscal
year ended January 3, 1988. The Company and its Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all material taxes due
pursuant to such returns or pursuant
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to any assessment received by the Company or any Subsidiary which the Company or
any Subsidiary is not disputing in a good faith manner. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Company,
adequate.
SECTION 3.08. SUBSIDIARIES. Attached hereto as Schedule 3.08 is a
schedule which correctly identifies all Subsidiaries as of the date of this
Agreement. Except as noted on Schedule 3.08, all of the issued and outstanding
shares of the capital stock of each Subsidiary is duly issued and outstanding,
fully paid and non-assessable and except for directors' qualifying shares and
shares issued solely for the purpose of satisfying local requirements concerning
the minimum number of shareholders is owned by the Company or a Subsidiary free
and clear of any mortgage, pledge, lien or encumbrance.
SECTION 3.09. REPRESENTATIONS AND WARRANTIES OF EACH BORROWING
SUBSIDIARY. Each Borrowing Subsidiary shall be deemed by the execution and
delivery of a Borrowing Subsidiary Agreement to have represented and warranted
as of the date thereof as follows:
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and is duly
qualified to do business and in good standing in each other jurisdiction in
which it owns property and/or conducts its business and in which failure to be
so qualified and in good standing would have a materially adverse effect on the
business of such Borrowing Subsidiary.
(b) The execution, delivery and performance by it of its Borrowing
Subsidiary Agreement, and the performance by it of the provisions of this
Agreement applicable to it, are within its corporate powers, have been duly
authorized by all necessary corporate action and do not contravene (i) its
charter or by-laws (or the equivalent thereof) or (ii) any law or regulation or
any agreement, judgment, injunction, order, decree or other instrument binding
on or affecting it.
(c) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Authority is required for the due execution,
delivery and
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performance by it of its Borrowing Subsidiary Agreement or for the performance
by it of the provisions of this Agreement applicable to it, except for those
which have been duly obtained or made and are in full force and effect.
(d) It is not in breach of or default under any agreement to which it
is a party or which is binding on it or any of its assets to an extent or in a
manner which would have a material adverse effect on its ability to perform its
obligations hereunder after taking into consideration its other financial
obligations.
(e) This Agreement is a legal, valid and binding obligation of such
Borrowing Subsidiary enforceable against it in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of the rights of its creditors generally
and subject to general legal and equitable principles with respect to the
availability of particular remedies.
(f) The proceeds of each Loan made to it will be used solely for
general corporate purposes, including the acquisition of new businesses.
SECTION 3.10. FEDERAL RESERVE REGULATIONS. (a) Neither any Borrower nor
any Subsidiary is engaged principally, or as a substantial part of its
activities, in the business of extending credit for the purpose of purchasing or
carrying Margin Stock (within the meaning of Regulation U).
(b) No part of the proceeds of any Loan has been or will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, in any manner or for any purpose that has resulted or will result in
a violation of Regulation U.
SECTION 3.11. INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT. Neither any Borrower nor any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
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SECTION 3.12. ENVIRONMENTAL AND SAFETY MATTERS. (a) With respect to all
facilities owned and operated by the Company and its Subsidiaries, or at which
the Company or any of its Subsidiaries has a leasehold interest, other than any
facilities referred to in (b) below, except as set forth in Schedule 3.12(a) (i)
the Company and each Subsidiary is in compliance in all material respects with
all Federal, state, local and other statutes, ordinances, orders, judgments,
rulings and regulations relating to environmental pollution or to environmental
regulation or control or to employee health or safety (collectively
"Environmental Laws") except where the failure to be in compliance so would not
be reasonably likely, individually or in the aggregate, to result in a Material
Adverse Effect; (ii) neither the Company nor any Subsidiary has received notice
of any material failure so to comply, which non-compliance neither has been
remedied nor is the subject of the Company's good faith efforts to achieve
compliance, except where the failure to be in compliance would not be reasonably
likely, individually or in the aggregate, to result in a Material Adverse Effect
and (iii) the Company is aware of no events, conditions or circumstances
involving environmental pollution or contamination or employee health or safety
that in its judgment would be reasonably likely to result in a Material Adverse
Effect.
(b) With respect to the Federally owned or operated facilities listed
on Schedule 3.12(b) at which the Company and/or its Subsidiaries are the
management and operations contractor or such facilities at which the Company
and/or its Subsidiaries may act as such after the date of this Agreement, except
as set forth in Schedule 3.12(c) neither the Company nor any of its Subsidiaries
has received notice of any claim under any Environmental Laws which in its
judgment would be reasonably likely to result in a Material Adverse Effect.
SECTION 3.13. YEAR 2000 COMPLIANCE. Any reprogramming required to
permit the proper functioning, in and following the year 2000, of (i) the
Company's and each Subsidiary's computer systems and (ii) equipment containing
embedded microchips (including systems and equipment supplied by others or with
which the Company's or any Subsidiary's systems interface) and the testing of
all such systems and equipment, as so reprogrammed, will be completed by July 1,
1999 except to the extent that the failure to complete such
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reprogramming and testing could not in the aggregate result in a Material
Adverse Effect. The cost to the Company and the Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Company and the Subsidiaries (including, without limitation,
reprogramming errors and the failure of others' systems or equipment) will not
result in a Default or a Material Adverse Effect. Except for such of the
reprogramming referred to in the preceding sentence as may be necessary, the
computer and management information systems of the Company and each Subsidiary
are and, with ordinary course upgrading, replacement and maintenance, will
continue for the term of this Agreement to be, sufficient to permit the Company
and each Subsidiary to conduct its business without a Material Adverse Effect.
SECTION 3.14. NO MATERIAL ADVERSE CHANGE. Since January 3, 1999, there
has occurred no event, condition or change in or affecting the Company or the
Subsidiaries that, individually or in the aggregate with other such events,
conditions or changes, has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.15. SOLVENCY. On the Closing Date, (i) the fair value of the
assets of the Company and the Subsidiaries on a consolidated basis, at a fair
valuation, will exceed their debts and liabilities, subordinated, contingent or
otherwise; (ii) the present fair saleable value of the property of the Company
and the Subsidiaries on a consolidated basis will be greater than the amount
that will be required to pay their probable liability on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (iii) the Company and the Subsidiaries
will on a consolidated basis be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) the Company and the Subsidiaries on a
consolidated basis will not have unreasonably small capital with which to
conduct the businesses in which they are engaged as such businesses are now
conducted and are proposed to be conducted following the Closing Date.
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ARTICLE IV
CONDITIONS OF LENDING
The obligations of the Lenders to make Loans hereunder are subject to
the satisfaction of the following conditions:
SECTION 4.01. ALL BORROWINGS. On the date of each Borrowing:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or Section 2.04, as applicable.
(b) The representations and warranties set forth in Article III (except
in the case of a refinancing that does not increase the aggregate principal
amount of Loans of any Lender outstanding, the representations set forth in
Section 3.05 and 3.12) hereof shall be true and correct in all material
respects on and as of the date of such Borrowing with the same effect as
though made on and as of such date, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) At the time of and immediately after such Borrowing no Event of
Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the applicable Borrower on the date of such Borrowing as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. CLOSING DATE. On the Closing Date:
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
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(b) The Administrative Agent shall have received the favorable written
opinion of Xxxxxx Xxxxx, Esq., dated the Closing Date and addressed to the
Lenders and satisfactory to Cravath, Swaine & Xxxxx, counsel for the
Administrative Agent, to the effect set forth in Exhibit D-1 hereto.
(c) The Administrative Agent shall have received (i) a copy of the
certificate of incorporation, including all amendments thereto, of the
Company, certified as of a recent date by the Secretary of State of its
state of incorporation, and a certificate as to the good standing of the
Company as of a recent date from such Secretary of State; (ii) a
certificate of the Clerk or an Assistant Clerk of the Company dated the
Closing Date and certifying (A) that attached thereto is a true and
complete copy of the by-laws of the Company as in effect on the Closing
Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of the
Company authorizing the execution, delivery and performance of this
Agreement and the Borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C)
that the certificate of incorporation referred to in clause (i) above has
not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to such clause (i) and (D)
as to the incumbency and specimen signature of each officer executing this
Agreement or any other document delivered in connection herewith on behalf
of the Company; and (iii) a certificate of another officer of the Company
as to the incumbency and specimen signature of the Clerk or Assistant Clerk
executing the certificate pursuant to (ii) above.
(d) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by a Financial Officer of the Company,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.01.
(e) The Company shall have terminated the 364-Day Competitive Advance
and Revolving Credit Facility
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Agreement, dated as of March 6, 1998, and the Competitive Advance and
Revolving Credit Facility Agreement, dated as of November 23, 1998, and all
principal, interest, fees and other amounts due and payable under such
agreements shall have been paid.
SECTION 4.03. FIRST BORROWING BY EACH BORROWING SUBSIDIARY. On the
first date on which Loans are made to each Borrowing Subsidiary:
(a) The Administrative Agent shall have received the favorable written
opinion of Xxxxxx Xxxxx, Esq., dated the date of such Loans, addressed to
the Lenders and satisfactory to Cravath, Swaine & Xxxxx, counsel for the
Administrative Agent, to the effect set forth in Exhibit D-2 hereto.
(b) Each Lender shall have received a copy of the Borrowing Subsidiary
Agreement executed by such Borrowing Subsidiary.
(c) Such Loans shall not violate any law, rule or regulation binding on
any of the Lenders.
(d) Each Lender shall have received from the Company an unaudited
consolidated balance sheet and related consolidated statements of earnings
and changes in financial position for the fiscal year most recently ended
of such Borrowing Subsidiary.
ARTICLE V
COVENANTS
The Company covenants and agrees with each Lender and the Administrative
Agent that so long as this Agreement shall remain in effect or the principal of
or interest on any Loan, any Facility Fees or any other amounts payable
hereunder shall be unpaid, unless the Required Lenders shall otherwise consent
in writing:
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SECTION 5.01. INFORMATION. The Company will give the Administrative
Agent prompt written notice of any change in any Rating that results in a change
in the Category on which the Applicable Percentage is based. The Company will
deliver to each of the Lenders:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of the Company, a consolidated balance sheet of the Company
and its Consolidated Subsidiaries as of the end of such fiscal year and the
related consolidated statements of earnings and cash flows for such fiscal year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by Xxxxxx Xxxxxxxx & Co. or other independent
public accountants of nationally recognized standing acceptable to the Required
Lenders and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements fairly present the financial condition and results of
operations of the Company and the Consolidated Subsidiaries in accordance with
GAAP;
(b) as soon as available and in any event within 45 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of earnings
and cash flows for such quarter and for the portion of the Company's fiscal year
ended at the end of such quarter, setting forth in each case in comparative form
the figures for the corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, compliance with GAAP and
consistency by a Financial Officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of a
Financial Officer of the Company (i) setting forth in reasonable detail the
calculations required to establish whether the Company was in compliance with
the requirements of Sections 5.06 and 5.07 on the date of such financial
statements and (ii) stating whether there exists on the date of such certificate
any Default and, if any Default then exists, setting forth the details thereof
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and the action which the Company is taking or proposes to take with respect
thereto;
(d) forthwith upon the occurrence of any Default, a certificate of the
chief financial officer or the chief accounting officer of the Company setting
forth the details thereof and the action which the Company is taking or proposes
to take with respect thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all annual or quarterly
reports and upon request by any Lender copies of all registration statements
(other than the exhibits thereto and any registration statements on Form S-8 or
its equivalent) which the Company shall have filed with the Securities and
Exchange Commission;
(g) (i) as soon as possible after, and in any event within 30 days
after the Company or any ERISA Affiliate knows or has reason to know that, any
Reportable Event has occurred that alone or together with any other Reportable
Event could reasonably be expected to result in liability of the Company to the
PBGC in an aggregate amount exceeding $5,000,000, a statement of a Financial
Officer setting forth details as to such Reportable Event and the action that
the Company proposes to take with respect thereto, together with a copy of the
notice, if any, of such Reportable Event given to the PBGC, (ii) promptly after
receipt thereof, a copy of any notice that the Company or any ERISA Affiliate
may receive from the PBGC relating to the intention of the PBGC to terminate any
Plan or Plans (other than a Plan maintained by an ERISA Affiliate that is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) or to appoint a trustee to administer any such Plan, (iii) within
10 days after the due date for filing with the PBGC pursuant to Section 412(n)
of the Code a notice of failure to make a required installment or other payment
with respect to a Plan, a statement of a Financial Officer setting forth details
as to such failure and the action that the Company proposes to take with respect
thereto, together with a copy of any such notice given to the PBGC and (iv)
promptly and in any event within 30 days after receipt thereof by the Company or
any ERISA Affiliate from the sponsor of a
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Multiemployer Plan, a copy of each notice received by the Company or any ERISA
Affiliate concerning (A) the imposition of Withdrawal Liability or (B) a
determination that a Multiemployer Plan is, or is expected to be, terminated or
in reorganization, both within the meaning of Title IV of ERISA; and
(h) from time to time such additional information regarding the
financial position or business of the Company as any Lender may reasonably
request.
SECTION 5.02. CORPORATE EXISTENCE; BUSINESSES AND PROPERTIES. (a) The
Company will, and will cause each Borrowing Subsidiary to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its corporate existence.
(b) Except to the extent that failure to do so would not have a
Material Adverse Effect, the Company will, and will cause each Borrowing
Subsidiary to, (i) do or cause to be done all things necessary to preserve,
renew and keep in full force and effect all rights, licenses, permits and
franchises material to the conduct of the business of the Company and the
Subsidiaries, taken as a whole, (ii) comply with all laws and regulations
applicable to it and (iii) conduct its business in substantially the same manner
as heretofore conducted or as at the time permitted under applicable law.
SECTION 5.03. INSURANCE. The Company will, and will cause each
Subsidiary to, keep its insurable properties adequately insured at all times by
financially sound and reputable insurers, and maintain such other insurance, to
such extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies similarly situated
and in the same or similar businesses.
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SECTION 5.04. LITIGATION AND OTHER NOTICES. The Company will give each
Lender prompt written notice of the following:
(a) the filing or commencement of, or any written threat or written
notice of intention of any person to file or commence, any action, suit or
proceeding which could reasonably be expected to result in a Material
Adverse Effect; and
(b) any development in the business or affairs of the Company or any
Subsidiary that has resulted in a Material Adverse Effect.
SECTION 5.05. MAINTAINING RECORDS; ACCESS TO PROPERTIES AND
INSPECTIONS. The Company will, and will cause each Subsidiary to, maintain
financial records in accordance with GAAP and, upon reasonable notice, at all
reasonable times, permit (a) any authorized representative designated by any
Lender to discuss the affairs, finances and condition of the Company and the
Subsidiaries with a Financial Officer of the Company and such other officers as
the Company shall deem appropriate and (b) any authorized representative
designated by the Administrative Agent or the Required Lenders to visit and
inspect the properties of the Company and of any Subsidiary.
SECTION 5.06. FIXED CHARGE COVERAGE. The Company will not permit the
ratio of (a) Consolidated EBIT to (b) Consolidated Net Interest Expense for any
period of four consecutive fiscal quarters ending on the last day of any fiscal
quarter to be less than 5:1.
SECTION 5.07. NET DEBT TO CAPITALIZATION RATIO. The Company will not
permit on any date the ratio of (a) Consolidated Net Indebtedness on such date
to (b) the sum of (i) Shareholders' Equity on such date and (ii) Consolidated
Net Indebtedness on such date to be greater than 0.55:1.00.
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SECTION 5.08. NEGATIVE PLEDGE. Neither the Company nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien securing Indebtedness
on any asset now owned or hereafter acquired by it, except:
(a) Liens on all or part of the assets of Consolidated Subsidiaries
securing Indebtedness owing by Consolidated Subsidiaries to the Company and
Consolidated Subsidiaries;
(b) mortgages on real property or security interests in personal
property securing Indebtedness of the Company and Consolidated Subsidiaries
in an aggregate amount not exceeding ten percent (10%) of the consolidated
total assets of the Company and the Consolidated Subsidiaries;
(c) Liens to secure taxes, assessments and other governmental charges
or claims for labor, material or supplies to the extent that payment
thereof shall not at the time be required to be made in accordance with
Section 3.07 hereof;
(d) deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age, pension or
other social security obligations;
(e) Liens in respect of judgments or awards not exceeding $1,000,000 in
the aggregate at any time, and any other Liens with respect to which the
execution or enforcement thereof is being effectively stayed and the claims
secured thereby are being contested in good faith by appropriate
proceedings;
(f) Liens of carriers, warehousemen, mechanics and materialmen, and
other like Liens, in existence less than 120 days from the date of creation
thereof;
(g) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under
leases to which the Company or a Consolidated Subsidiary is a party, and
other similar encumbrances none of which in the opinion of the Company
interferes materially with
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the use of the property in the ordinary conduct of the business of the
Company and the Consolidated Subsidiaries; and similar encumbrances on
interests in real estate located outside the United States, which defects
do not individually or in the aggregate have a material adverse effect on
the business of the Company individually or of the Company and the
Consolidated Subsidiaries on a consolidated basis; and
(h) to the extent that the value of all Margin Stock owned by the
Company and its Consolidated Subsidiaries (determined in accordance with
Regulation U) exceeds 25% of the value of the total assets of the Company
and its Consolidated Subsidiaries subject to this Section 5.08 (as so
determined), Liens on such excess Margin Stock (it being understood that
Margin Stock not in excess of 25% of the value of such assets will be
subject to the restrictions of this Section 5.08).
SECTION 5.09. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. (a) The
Company will not (i) consolidate or merge with or into any other person unless
(A) the Company shall be the surviving entity and (B) immediately thereafter no
Default or Event of Default shall have occurred and be continuing or (ii) sell,
lease or otherwise transfer all or any substantial part of its assets to any
other person. The Company will not sell, lease or otherwise transfer any of its
assets to any other person except for full and adequate consideration.
(b) No Borrowing Subsidiary will (i) consolidate or merge with or into
any other person unless (A) if the surviving entity shall be other than such
Borrowing Subsidiary, (x) such surviving entity or the Company shall have
assumed in writing all obligations of such Borrowing Subsidiary relating to this
Agreement and (y) such surviving entity shall be 100% owned by the Company and
(B) no Default or Event of Default shall have occurred and be continuing either
before or immediately after such consolidation or merger or (ii) sell, lease or
otherwise transfer all or any substantial part of its assets to any other
person. No Borrowing Subsidiary will sell, lease or otherwise transfer any of
its assets to any other person except for full and adequate consideration.
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(c) Notwithstanding anything in the foregoing to the contrary, to the
extent that the value of all Margin Stock owned by the Company and its
Consolidated Subsidiaries (determined in accordance with Regulation U) exceeds
25% of the value of the total assets of the Company and its Consolidated
Subsidiaries subject to this Section 5.09 (as so determined), the restrictions
contained in subsections (a)(ii) and (b)(ii) of this Section 5.09 shall not
apply to such excess Margin Stock (it being understood that Margin Stock not in
excess of 25% of the value of such assets will be subject to the restrictions of
this Section 5.09).
SECTION 5.10. OWNERSHIP OF MARGIN STOCK. The Company will not, and will
not permit its Subsidiaries to, own Margin Stock to the extent the value of such
Margin Stock would exceed 28% of the value of the total assets of the Company
and its Consolidated Subsidiaries.
ARTICLE VI
EVENTS OF DEFAULT
In case of the happening of any of the following events (each
an "Event of Default"):
(a) any representation or warranty made or deemed made in or in
connection with the execution and delivery of this Agreement or the
Borrowings hereunder or any representation, warranty, statement or
information contained in any report, certificate, financial statement or
other instrument furnished in connection with this Agreement shall prove to
have been incorrect in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any Loan
when and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan or
any Facility Fee or any other amount (other than an amount referred to in
paragraph (b) above) due hereunder, when and as the same
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shall become due and payable, and such default shall continue unremedied
for a period of three Business Days;
(d) default shall be made in the due observance or performance of any
covenant, condition or agreement contained in Sections 5.02 or 5.06 through
5.09;
(e) default shall be made in the due observance or performance of any
covenant, condition or agreement contained herein (other than those
specified in paragraphs (b), (c) or (d) above) and such default shall
continue unremedied for a period of 10 days after notice thereof from the
Administrative Agent or any Lender to the Company;
(f) the Company or any Subsidiary shall (i) fail to pay any principal
or interest, regardless of amount, due in respect of any Indebtedness in an
aggregate principal amount in excess of $15,000,000, when and as the same
shall become due and payable, or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trustee on its or their behalf
(with or without the giving of notice, the lapse of time or both) to cause,
such Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Company or any Subsidiary, or of a substantial
part of the property or assets of the Company or a Subsidiary, under Title
11 of the United States Code, as now constituted or hereafter amended, or
any other Federal or state bankruptcy, insolvency, receivership or similar
law, (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Subsidiary or for a
substantial part of the property or assets of the Company or a Subsidiary
or (iii) the winding up or liquidation of the Company or any Subsidiary;
and such proceeding or petition shall continue undismissed for 60
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days or an order or decree approving or ordering any of the foregoing shall
be entered;
(h) the Company or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code, as now constituted or hereafter amended, or any other Federal
or state bankruptcy, insolvency, receivership or similar law, (ii) consent
to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or the filing of any petition described in paragraph
(g) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Company or any Subsidiary or for a substantial part of the property or
assets of the Company or any Subsidiary, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) become
unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take any action for the purpose of effecting
any of the foregoing;
(i) one or more final and nonappealable judgments for the payment of
money in an aggregate amount in excess of $5,000,000 shall be rendered
against the Company, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be legally
taken by a judgment creditor to levy upon assets or properties of the
Company or any Subsidiary to enforce any such final and nonappealable
judgment or judgments aggregating in excess of $5,000,000;
(j) a Reportable Event or Reportable Events, or a failure to make a
required installment or other payment (within the meaning of Section
412(n)(l) of the Code), shall have occurred with respect to any Plan or
Plans that reasonably could be expected to result in liability of the
Company to the PBGC or to a Plan in an aggregate amount exceeding
$5,000,000 and, within 30 days after the reporting of any such Reportable
Event to the Administrative Agent, the Administrative Agent shall have
notified the Company in writing that (i) the
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Required Lenders have made a determination that, on the basis of such
Reportable Event or Reportable Events or the failure to make a required
payment, there are reasonable grounds (A) for the termination of such Plan
or Plans by the PBGC, (B) for the appointment by the appropriate United
States District Court of a trustee to administer such Plan or Plans or (C)
for the imposition of a lien in favor of a Plan and (ii) as a result
thereof an Event of Default exists hereunder; or a trustee shall be
appointed by a United States District Court to administer any such Plan or
Plans; or the PBGC shall institute proceedings to terminate any Plan or
Plans;
(k) (i) the Company or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan, (ii) the Borrower or such ERISA
Affiliate does not have reasonable grounds for contesting such Withdrawal
Liability or is not in fact contesting such Withdrawal Liability in a
timely and appropriate manner and (iii) the amount of the Withdrawal
Liability specified in such notice, when aggregated with all other amounts
required to be paid to Multiemployer Plans in connection with Withdrawal
Liabilities (determined as of the date or dates of such notification),
exceeds $5,000,000 or requires payments exceeding $1,000,000 in any year;
(1) the Company or any ERISA Affiliate shall have been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, if solely as a result of such reorganization or termination the
aggregate annual contributions of the Company and its ERISA Affiliates to
all Multiemployer Plans that are then in reorganization or have been or are
being terminated have been or will be increased over the amounts required
to be contributed to such Multiemployer Plans for their most recently
completed plan years by an amount exceeding $1,000,000;
(m) any guarantee purported to be created by Article VII hereof shall
cease to be, or shall be asserted by the Company not to be, a valid and
enforceable guarantee of the Guaranteed Obligations; or
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(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Company, take either or both of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments and (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Facility Fees and all other liabilities of the Borrowers accrued
hereunder, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived anything contained herein to the contrary notwithstanding; and, in any
event with respect to the Company described in paragraph (g) or (h) above, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and any unpaid accrued
Facility Fees and all other liabilities of the Borrowers accrued hereunder shall
automatically become due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived anything
contained herein to the contrary notwithstanding.
ARTICLE VII
GUARANTEE
The Company unconditionally and irrevocably guarantees the due and
punctual payment and performance, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, of the
Guaranteed Obligations. The Company further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from it and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed Obligations.
The Company waives presentment to, demand of payment from and protest
to the Borrowing Subsidiaries of any of the Guaranteed Obligations, and also
waives notice of
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acceptance of its guarantee and notice of protest for nonpayment. The
obligations of the Company hereunder shall not be affected by (a) the failure of
any Lender or the Administrative Agent to assert any claim or demand or to
enforce any right or remedy against the Borrowing Subsidiaries under the
provisions of this Agreement or otherwise; (b) any rescission, waiver, amendment
or modification of any of the terms or provisions of this Agreement, any
guarantee or any other agreement; or (c) the failure of any Lender or the
Administrative Agent to exercise any right or remedy against any other guarantor
of the Guaranteed Obligations.
The Company further agrees that its guarantee constitutes a guarantee
of payment when due and not of collection, and waives any right to require that
any resort be had by the Administrative Agent or any Lender to any security, if
any, held for payment of the Guaranteed Obligations or to any balance of any
deposit account or credit on its books, in favor of the Borrowing Subsidiaries
or any other person.
The obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of the Company hereunder shall
not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
any remedy under this Agreement, any guarantee or any other agreement, by any
waiver or modification of any provision of any thereof, by any default, failure
or delay, wilful or otherwise, in the performance of the Guaranteed Obligations,
or by any other act or omission which may or might in any manner or to any
extent vary the risk of the Company or otherwise operate as a discharge of the
Company as a matter of law or equity.
To the extent permitted by applicable law, the Company waives any
defense based on or arising out of any defense available to the Borrowing
Subsidiaries, including
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any defense based on or arising out of any disability of the Borrowing
Subsidiaries, or the unenforceability of the Guaranteed Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrowing Subsidiaries, other than final payment in full of the Guaranteed
Obligations. The Administrative Agent and the Lenders may, at their election,
foreclose on any security held by one or more of them by one or more judicial or
non-judicial sales, or exercise any other right or remedy available to them
against the Borrowing Subsidiaries, or any security without affecting or
impairing in any way the liability of the Company hereunder except to the extent
the Guaranteed Obligations have been fully and finally paid. The Company waives
any defense arising out of any such election even though such election operates
to impair or to extinguish any right of reimbursement or subrogation or other
right or remedy of the Company against any Borrowing Subsidiary or any security.
The Company further agrees that its guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Lender upon the bankruptcy or
reorganization of any Borrowing Subsidiary or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which the Administrative Agent or any Lender may have at law or in equity
against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to and will, upon receipt of written
demand by the Administrative Agent or any Lender, forthwith pay or cause to be
paid to the Administrative Agent or such Lender in cash the amount of such
unpaid Guaranteed Obligation.
Upon payment by the Company of any sums to the Administrative Agent or
any Lender, as provided above, all rights of the Company against the other
Borrowers arising as a result thereof by way of right of subrogation or
otherwise shall in all respects be subordinated and junior in right of payment
to the prior indefeasible payment in full of all the Guaranteed Obligations to
the Administrative Agent and the Lenders.
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ARTICLE VIII
THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement,
The Chase Manhattan Bank is hereby appointed to act as Administrative Agent on
behalf of the Lenders. Each of the Lenders hereby irrevocably authorizes the
Administrative Agent to take such actions on behalf of such Lender or holder and
to exercise such powers as are specifically delegated to the Administrative
Agent by the terms and provisions hereof, together with such actions and powers
as are reasonably incidental thereto. The Administrative Agent is hereby
expressly authorized by the Lenders, without hereby limiting any implied
authority, (a) to receive on behalf of the Lenders all payments of principal of
and interest on the Loans and all other amounts due to the Lenders hereunder,
and promptly to distribute to each Lender its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders to the Borrowers
of any Event of Default of which the Administrative Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute promptly
to each Lender copies of all notices, financial statements and other materials
delivered by the Borrowers pursuant to this Agreement as received by the
Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his or her own gross negligence or willful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrowers of any of the terms, conditions, covenants or
agreements contained in this Agreement. The Administrative Agent shall not be
responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or other instruments or
agreements. The Administrative Agent may deem and treat the Lender that makes
any Loan as the holder of the indebtedness resulting therefrom for all purposes
hereof until it shall have received notice from such Lender, given as provided
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herein, of the transfer thereof. The Administrative Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. The Administrative Agent
shall, in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Administrative Agent nor any of its directors, officers, employees or agents
shall have any responsibility to the Borrowers on account of the failure of or
delay in performance or breach by any other Lender of any of its obligations
hereunder or to any Lender on account of the failure of or delay in performance
or breach by any other Lender or the Borrowers of any of their respective
obligations hereunder or in connection herewith. The Administrative Agent may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided below, the Administrative Agent may resign at any time by
notifying the Lenders and the Company. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent
reasonably acceptable to the Company. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then, the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, having a combined capital and surplus of at least
$500,000,000 or an Affiliate of any such bank. Upon the acceptance of any
appointment as Administrative Agent
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hereunder by a successor bank, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrowers or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent, on
demand, in the amount of its pro rata share (based on its Commitment hereunder
or, if the Commitments shall have been terminated, the amount of its outstanding
Loans) of any out-of-pocket expenses incurred for the benefit of the Lenders by
the Administrative Agent, including reasonable counsel fees and compensation of
agents paid for services rendered on behalf of the Lenders, which shall not have
been reimbursed by the Borrowers and (ii) to indemnify and hold harmless the
Administrative Agent and any of its directors, officers, employees or agents, on
demand, in the amount of such pro rata share, from and against any and all
liabilities, taxes, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against it in its capacity as the
Administrative Agent in any way relating to or arising out of this Agreement or
any action taken or omitted by it under this Agreement to the extent the same
shall not have been reimbursed by the Borrowers; PROVIDED that no Lender shall
be liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or any of its directors, officers,
employees or agents. Each Lender
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agrees that any allocation made in good faith by the Administrative Agent of
expenses or other amounts referred to in this paragraph between this Agreement
and the Five-Year Facility shall be conclusive and binding for all purposes.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
or any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. Except as otherwise expressly provided herein,
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed or sent by
telecopy, as follows:
(a) if to any Borrower, to EG&G, Inc., 00 Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000, Attention of Treasurer, (Telecopy No. 781-431-4113);
(b) if to the Administrative Agent, to it at One Chase Xxxxxxxxx Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxxxxxx,
(Telecopy No. 212-552-5662); and
(c) if to a Lender, to it at its address (or telecopy number) set forth
in Schedule 2.01 or in the Assignment and Acceptance pursuant to which such
Lender became a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if
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delivered by hand or overnight courier service or sent by telecopy to such party
as provided in this Section 9.01 or in accordance with the latest unrevoked
direction from such party given in accordance with this Section 9.01.
SECTION 9.02. SURVIVAL OF AGREEMENT. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any Facility Fee or any other amount payable under this Agreement is
outstanding and unpaid or the Commitments have not been terminated.
SECTION 9.03. BINDING EFFECT. This Agreement shall become effective
when it shall have been executed by the Company and the Administrative Agent and
when the Administrative Agent shall have received copies hereof (telecopied or
otherwise) which, when taken together, bear the signature of each Lender, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrowers shall not
have the right to assign any rights hereunder or any interest herein without the
prior consent of all the Lenders.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any party that are contained in this Agreement
shall bind and inure to the benefit of its successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion of
its interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); PROVIDED,
HOWEVER, that (i) except in the case of an assignment to a Lender or a domestic
Affiliate of a Lender, the Company must give its prior written consent to such
assignment (which consent shall not be unreasonably
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withheld), (ii) the amount of the Commitment (or, after the Termination Date,
the outstanding Loans) of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000, (iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance, and a processing and
recordation fee of $3,500 and (iv) the assignee, if it shall not be a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire. Upon
acceptance and recording pursuant to paragraph (e) of this Section 9.04, from
and after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five Business Days after the execution thereof,
(A) the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement and (B) the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto (but shall continue to be entitled to the
benefits of Sections 2.13, 2.15, 2.20 and 9.05, as well as to any Facility Fees
accrued for its account hereunder and not yet paid)). Notwithstanding the
foregoing, any Lender assigning its rights and obligations under this Agreement
may retain any Competitive Loans made by it outstanding at such time, and in
such case shall retain its rights hereunder in respect of any Loans so retained
until such Loans have been repaid in full in accordance with this Agreement.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this
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Agreement or any other instrument or document furnished pursuant hereto or the
financial condition of the Borrowers or the performance or observance by the
Borrowers of any obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee represents and warrants
that it is legally authorized to enter into such Assignment and Acceptance; (iv)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the most recent financial statements delivered pursuant to
Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its offices in
the City of New York a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitment of, and the principal amount of the Loans owing to, each
Lender pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive in the absence of manifest error and
the Borrowers, the Administrative Agent and the Lenders may treat each person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by each party hereto, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee together with an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and
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recordation fee referred to in paragraph (b) above and, if required, the written
consent of the Company to such assignment, the Administrative Agent shall (i)
accept such Assignment and Acceptance and (ii) record the information contained
therein in the Register.
(f) Each Lender may sell participations to one or more banks or other
entities in all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
PROVIDED, HOWEVER, that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) each participating
bank or other entity shall be entitled to the benefit of the cost protection
provisions contained in Sections 2.13, 2.15 and 2.20 to the same extent as if it
was the selling Lender (but limited to the amount that could have been claimed
by the selling Lender had it continued to hold the interest of such
participating bank or other entity), except that all claims made pursuant to
such Sections shall be made through such selling Lender, and (iv) the Borrowers,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such selling Lender in connection with such Lender's rights and
obligations under this Agreement, and such selling Lender shall retain the sole
right to enforce the obligations of the Borrowers relating to the Loans and to
approve any amendment, modification or waiver of any provision of this Agreement
(other than amendments, modifications or waivers decreasing any fees payable
hereunder or the amount of principal of or the rate at which interest is payable
on the Loans, extending any scheduled principal payment date or date fixed for
the payment of interest on the Loans or changing or extending the Commitments).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant any
information relating to the Borrowers furnished to such Lender; PROVIDED that,
prior to any such disclosure, each such assignee or participant or proposed
assignee or participant shall execute an agreement whereby such assignee or
participant shall agree (subject to customary exceptions) to preserve the
confidentiality of any such information.
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(h) The Borrowers shall not assign or delegate any rights and duties
hereunder without the prior written consent of all Lenders.
(i) Any Lender may at any time pledge all or any portion of its rights
under this Agreement to a Federal Reserve Bank; PROVIDED that no such pledge
shall release any Lender from its obligations hereunder or substitute any such
Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve Bank, each Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to such Borrower by the assigning Lender
hereunder.
SECTION 9.05. EXPENSES; INDEMNITY. (a) The Borrowers agree, jointly and
severally, to pay the fees and disbursements of counsel for the Administrative
Agent in connection with entering into this Agreement and in connection with any
amendments, modifications or waivers of the provisions hereof, and agree,
jointly and severally, to pay the reasonable out-of-pocket expenses incurred by
the Administrative Agent or any Lender in connection with the enforcement or
protection of their rights in connection with this Agreement or the Loans made
hereunder, including the reasonable fees and disbursements of counsel for the
Administrative Agent or any Lender.
(b) The Borrowers agree, jointly and severally, to indemnify the
Administrative Agent, each Lender, each of their Affiliates and the directors,
officers, employees and agents of the foregoing (each such person being called
an "Indemnitee") against, and to hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including reasonable
counsel fees and expenses, incurred by or asserted against any Indemnitee
arising out of (i) the execution or delivery of this Agreement or any agreement
or instrument contemplated thereby, the performance by the parties thereto of
their respective obligations thereunder or the consummation of the transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or (iii) any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto; PROVIDED that such indemnity
shall not, as to any Indemnitee, be
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available to the extent that such losses, claims, damages, liabilities or
related expenses are finally determined by a court of competent jurisdiction to
have resulted from the gross negligence or willful misconduct of such Indemnitee
or from such Indemnitee's violation of the Federal securities laws prohibiting
xxxxxxx xxxxxxx.
(c) The provisions of this Section shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the invalidity or unenforceability of any term or provision of this
Agreement or any investigation made by or on behalf of the Administrative Agent
or any Lender. All amounts due under this Section shall be payable on written
demand therefor.
SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. WAIVERS; AMENDMENT. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Borrower or any Subsidiary in any case shall entitle such party to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders; PROVIDED, HOWEVER, that
no such agreement shall (i) decrease the principal amount of,
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or extend the maturity of or any scheduled principal payment date or date for
the payment of any interest on any Loan, or waive or excuse any such payment or
any part thereof, or decrease the rate of interest on any Loan, without the
prior written consent of each Lender affected thereby, (ii) increase the
Commitment or decrease the Facility Fee of any Lender or extend any date for
payment thereof without the prior written consent of such Lender, (iii) amend or
modify the provisions of Section 2.16 or Section 9.04(h), the provisions of this
Section or the definition of the "Required Lenders," or (iv) release the Company
from any of its obligations under Article VII hereof without the prior written
consent of each Lender; PROVIDED FURTHER, HOWEVER, that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent hereunder without the prior written consent of the Administrative Agent.
Each Lender shall be bound by any waiver, amendment or modification authorized
by this Section and any consent by any Lender pursuant to this Section shall
bind any assignee of its rights and interests hereunder.
SECTION 9.08. ENTIRE AGREEMENT. This Agreement constitutes the entire
contract among the parties relative to the subject matter hereof. Any previous
agreement among the parties with respect to the subject matter hereof is
superseded by this Agreement. Nothing in this Agreement, expressed or implied,
is intended to confer upon any party other than the parties hereto any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
SECTION 9.09. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 9.10. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
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SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or account of the Company and any Borrowing Subsidiary now or
hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the Company after such setoff and application made by such Lender, but
the failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
setoff) which such Lender may have.
SECTION 9.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Subject to the foregoing and to paragraph (b) below, nothing in this Agreement
shall affect any right that any party hereto may otherwise have to bring any
action or proceeding
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relating to this Agreement against any other party hereto in the courts of any
jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.14. WAIVER OF JURY TRIAL. Each party hereto hereby waives, to
the fullest extent permitted by applicable law, any right it may have to a trial
by jury in respect of any litigation directly or indirectly arising out of,
under or in connection with this Agreement. Each party hereto (a) certifies that
no representative, agent or attorney of any other party has represented,
expressly or otherwise, that such other party would not, in the event of
litigation, seek to enforce the foregoing waiver and (b) acknowledges that it
and other parties hereto have been induced to enter into this Agreement by,
among other things, the mutual waivers and certification in this Section.
SECTION 9.15. ADDITION OF BORROWING SUBSIDIARIES. Each wholly owned
Subsidiary of the Company which shall deliver to the Administrative Agent a
Borrowing Subsidiary Agreement executed by such Subsidiary and the Company
shall, upon such delivery and without further act, become a party hereto and a
Borrower hereunder with the same effect as if it had been an original party to
this Agreement.
SECTION 9.16. CONFIDENTIALITY. Each Lender and the Administrative Agent
agree to keep confidential the Information, except that any such Lender and the
Administrative Agent shall be permitted to disclose Information (a) to such of
its officers, directors, employees, agents and representatives as need to know
such
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Information; (b) to the extent required by applicable laws and regulations or by
any subpoena or similar legal process, including with respect to the enforcement
of this Agreement, PROVIDED that such Lender and the Administrative Agent shall
use reasonable efforts to notify the Company of such prospective disclosure a
reasonable time prior to any such disclosure and shall take such actions
reasonably requested by the Company to assist the Company in obtaining a
protective order or confidential treatment with respect to such Information (it
being understood that failure to give such notice after having made any such
reasonable efforts shall not result in any liability hereunder to such Lender or
the Administrative Agent, as the case may be); (c) to the extent requested by
any bank regulatory authority; (d) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Agreement, (ii)
becomes available to such Lender or the Administrative Agent on a
non-confidential basis from a source other than the Company and its Affiliates
or (iii) was available to such Lender or the Administrative Agent on a
non-confidential basis prior to its disclosure to such Lender or the
Administrative Agent by the Company or its Affiliates; (e) to any actual or
prospective assignee or participant in any rights of such Lender or the
Administrative Agent under this Agreement, provided that such assignee or
participant delivers to the Administrative Agent or such Lender, as applicable,
a confidentiality letter containing substantially the undertakings set forth in
this Section 9.16 and (f) to the extent the Company shall have consented to such
disclosure in writing.
SECTION 9.17. COLLATERAL. Each of the Lenders represents to each of the
other Lenders that it in good faith is not relying upon any Margin Stock as
collateral in the extension or maintenance of the credit provided for in this
Agreement.
SECTION 9.18. INTEREST RATE LIMITATION. Notwithstanding anything herein
to the contrary, if at any time the applicable interest rate, together with all
fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by any Lender, shall exceed the maximum lawful rate (the
"Maximum Rate") which may be contracted for, charged,
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taken, received or reserved by such Lender in accordance with applicable law,
all Charges payable to such Lender shall be limited to the Maximum Rate.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
EG&G, INC.,
by
/S/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent,
by
/s/ Xxxxxxx Lancia
----------------------------------------
Name: Xxxxxxx Lancia
Title: Vice President
ABN AMRO BANK N.V.,
by
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Group Vice President
by
/s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director
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THE FIRST NATIONAL BANK OF CHICAGO,
by
/s/ Xxx Xxx
----------------------------------------
Name: Xxx Xxx
Title: Corporate Banking Officer
THE NORTHERN TRUST COMPANY,
by
/s/ Xxxxx F.T. Xxxxxxx
----------------------------------------
Name: Xxxxx F.T. Monhart
Title: Senior Vice President
STANDARD CHARTERED BANK,
by
/s/ Xxxxxxxx XxXxxxx
----------------------------------------
Name: Xxxxxxxx XxXxxxx
Title: Vice President
by
/s/ Xxxxx X.X. Xxxxx
----------------------------------------
Name: Xxxxx X.X. Xxxxx
Title: Senior Credit Officer
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN
ISLAND BRANCHES,
84
by
/s/ Xxx Xxxxxxxx
----------------------------------------
Name: Xxx Xxxxxxxx
Title: Senior Vice President
by
/s/ B. Xxxxx Xxxxxxxx
----------------------------------------
Name: B. Xxxxx Xxxxxxxx
Title: Vice President
ROYAL BANK OF CANADA,
by
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Manager
SOCIETE GENERALE,
by
/s/ Sedare Xxxxxxx
----------------------------------------
Name: Sedare Xxxxxxx
Title: Vice President
