EXHIBIT 4.2
364-DAY REVOLVING CREDIT AGREEMENT, dated as of June 3, 1999, among York
International Corporation, a Delaware corporation (the "Company"), the several
banks and other financial institutions from time to time parties to this
Agreement (the "Banks") and Canadian Imperial Bank of Commerce, acting through
its New York Agency ("CIBC-NYA"), as administrative agent for the Banks
hereunder (in such capacity, the "Administrative Agent").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
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shall have the following meanings:
"Acquisition": the acquisition by the Company of Sabroe, upon the
terms and conditions contemplated by the Acquisition Agreement.
"Acquisition Agreement": the Share Sale and Purchase Agreement, dated
March 27, 1999, among the Company, X. Xxxxxxxxx Holding A/S, a public
limited company incorporated under the laws of Denmark and EQT Scandinavia
Ltd., a public limited company incorporated under the laws of Guernsey,
acting as the investment manager for certain investors.
"Affiliate": as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person or (b) any Person who is a
director, officer, shareholder or partner (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person described in the preceding
clause (a). For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (i) vote 10% or more of the
securities having ordinary voting power for the election of directors of
such Person or (ii) direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Aggregate Outstanding Extensions of Credit": as to any Bank at any
time, an amount equal to such Bank's Commitment Percentage of the aggregate
principal amount of all Loans then outstanding.
"Agreement": this 364-Day Revolving Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any particular date, a rate of interest per
annum equal to the higher of:
(a) the rate of interest publicly announced by CIBC as its prime rate
in effect at its principal office in New York City (the "Prime
Rate"); and
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(b) the applicable Federal Funds Rate for such date plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate
of interest charged by CIBC in connection with extensions of credit.
"Alternate Base Rate Loans": Loans the rate of interest applicable to
which is based upon the Alternate Base Rate.
"Applicable Margin": for each Alternate Base Rate Loan and Eurodollar
Loan, the applicable rate per annum set forth on the Pricing Grid based
upon the Senior Debt Rating in effect from time to time.
"Available Commitment": as to any Bank at any time, an amount equal
to the excess, if any, of (a) such Bank's Commitment over (b) such Bank's
Aggregate Outstanding Extensions of Credit.
"Banks": the banks and other financial institutions from time to time
listed in Schedule I, provided that, unless the context otherwise requires,
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each reference herein to the Banks shall include any SPC.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.2 as a date on which the Company requests the Banks to make
Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City are authorized or required by law
to close, provided, that with respect to notices and determinations in
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connection with, and payments of principal and interest on, Eurodollar
Loans, such day is also a day for trading by and between banks in Dollar
deposits in the interbank eurodollar market.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents": (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than one year from
the date of acquisition, (ii) time deposits and certificates of deposit
having maturities of not more than one year from the date of acquisition of
any Bank or of any domestic commercial banking institution that is a member
of the Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $250,000,000, (iii) repurchase
obligations with a term of not more than 180 days for underlying securities
of the types described in clauses (i) and (ii) entered into with any bank
meeting the qualifications specified in clause (ii) above, and (iv)
commercial paper rated at least A-2 or the equivalent thereof by S&P or P-2
or the equivalent thereof by Xxxxx'x Investors Service, Inc. and in either
case maturing within 270 days after the date of acquisition.
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"CIBC": Canadian Imperial Bank of Commerce, a Canadian chartered
bank, or one or more of its affiliates in its or their respective
capacities, as the case may be, as a Bank or Banks hereunder.
"Code": the Internal Revenue Code of 1986, as amended from time to
time, together with the rules and regulations promulgated thereunder.
"Commitment": as to any Bank, the obligation of such Bank to make
Loans to the Company hereunder in an aggregate principal and/or face amount
at any one time outstanding not to exceed the amount set forth opposite
such Bank's name on Schedule I, as such amount may be reduced from time to
time pursuant to subsection 3.2.
"Commitment Percentage": as to any Bank at any time, the percentage
of the aggregate Commitments then constituted by such Bank's Commitment.
"Commitment Period": the period from and including the date hereof to
but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Company within the meaning of
Section 4001(a)(14) of ERISA or is part of a group which includes the
Company and which is treated as a single employer under Section 414(b) or
(c) of the Code.
"Conduit Financing Arrangement": as defined in subsection 3.12(c).
"Consolidated EBIT": for any period, Consolidated Net Income for such
period (excluding, however, (a) any gains from the sale or other
disposition of assets (other than sales of inventory in the ordinary course
of business), (b) the effect of non-recurring restructuring charges in an
amount not to exceed $50,000,000 incurred prior to December 31, 1999 in
connection with the Acquisition and the integration of the operations of
Sabroe with those of the Company and its Subsidiaries, and (c) any other
extraordinary or non-recurring gains), before deduction for income taxes
and Consolidated Interest Expense, determined in accordance with GAAP.
"Consolidated Interest Expense": for any period, the aggregate
interest expense of the Company and its Subsidiaries for such period, as
determined in accordance with GAAP.
"Consolidated Net Income": for any period, the consolidated net
income (or deficit) of the Company and its Subsidiaries for such period
(taken as a cumulative whole), determined in accordance with GAAP.
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"Consolidated Net Worth": at any particular date, all amounts which,
in accordance with GAAP, would be included under stockholders' equity on a
consolidated balance sheet of the Company and its Subsidiaries at such
date.
"Continuing Directors": directors of the Company on the Effective
Date and each other director, if such other director's nomination for
election to the board of directors of the Company is recommended by a
majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Domestic Subsidiary": any Subsidiary other than a Foreign
Subsidiary.
"Effective Date": the date upon which the conditions precedent set
forth in subsection 5.1 shall be satisfied and this Agreement shall become
effective.
"Environmental Laws": any and all applicable foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or requirements
of law (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, together with the rules and regulations
promulgated thereunder.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction
with respect thereto) prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on the Reuters Screen ISDA Page as of 11:00 A.M.,
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London time, two Business Days prior to the beginning of such Interest
Period. If such rate does not appear on the Reuters Screen ISDA Page (or
otherwise on such screen), the "Eurodollar Base Rate" shall be determined
by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent
or, in the absence of such availability, by reference to the rate at which
the Administrative Agent is offered Dollar deposits at or about 11:00 A.M.,
New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for
delivery on the first day of such Interest Period for the number of days
comprised therein and in an amount comparable to the amount of its
Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward, if
necessary, to the nearest 1/100th of 1%):
Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"Facility Fee": as defined in subsection 3.1(a).
"Federal Funds Rate": for any particular date, an interest rate per
annum equal to the interest rate (rounded upward, if necessary, to the
nearest 1/100th of 1%) offered in the interbank market to the
Administrative Agent as the overnight Federal Funds Rate at or about 10:00
A.M., New York City time, on such day (or, if such day is not a Business
Day, for the next preceding Business Day).
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Subsidiary": any Subsidiary organized and operating under
the laws of a jurisdiction other than the United States of America or any
political subdivision thereof.
"Funded Debt": all Indebtedness of the Company and its Subsidiaries
and all Guarantee Obligations of the Company and its Subsidiaries in
respect of Indebtedness of
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Persons other than the Company and its Subsidiaries, provided that, for
purposes of subsection 7.1(b), Funded Debt shall not include letters of
credit with a face amount not exceeding $35,000,000 in the aggregate,
appropriate reserves for which have been provided in the books and records
of the Company.
"GAAP": generally accepted accounting principles in the United States
of America consistent with those utilized in preparing the audited
financial statements referred to in subsection 4.1, disregarding changes in
such principles after December 31, 1991.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Granting Bank": as defined in subsection 10.6(h).
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined in accordance with
GAAP.
"Indebtedness": of any Person at any date, (a) all indebtedness of
such Person for borrowed money or for the deferred purchase price of
property or services (other than
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current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices) or which is evidenced by a
note, bond, debenture or similar instrument, (b) all obligations of such
Person under Financing Leases, (c) all obligations of such Person in
respect of acceptances issued or created for the account of such Person,
(d) the portion of the cash purchase price related to the purchase of
accounts receivable from such Person (including, without limitation, in the
case of the Company, the cash proceeds received from time to time from the
sale of the Company's accounts receivable) that shall not have been
recovered by the purchaser thereof excluding up to $75,000,000 of
receivables owing by foreign obligors that are sold by the Company and its
Subsidiaries and (e) all liabilities secured by any Lien on any property
owned by such Person even though such Person has not assumed or otherwise
become liable for the payment thereof (the amount of such liabilities
referred to in this clause (e) being deemed to be in an amount equal to the
lesser of the amount secured by such Lien and the fair market value of the
assets subject to such Lien (as determined in good faith by the Company)).
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any Alternate Base Rate Loan, the
last Business Day of each March, June, September and December to occur
while such Loan is outstanding, (b) as to any Eurodollar Loan having an
Interest Period of three months or less, the last day of such Interest
Period and (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period and the last day of
such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(i) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter, as selected
by the Company in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto; and
(ii) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the
Company by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods
are subject to the following:
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(1) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date;
(3) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(4) the Company shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement, any Financing Lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement
under the Uniform Commercial Code or comparable law of any jurisdiction in
respect of any of the foregoing), provided, however, that no transfer of
assets that is treated as a sale in accordance with GAAP shall be deemed to
constitute a Lien for purposes of the Agreement.
"Loan Documents": collectively, this Agreement and the Notes.
"Loans": as defined in subsection 2.1.
"Material Adverse Effect": a material adverse effect on (a) the
Acquisition, (b) the business, operations, property, condition (financial
or otherwise) or prospects of the Company and its Subsidiaries taken as a
whole, (c) the ability of the Company to perform its obligations under this
Agreement, any of the Notes or any of the other Loan Documents, or (d) the
validity or enforceability of this Agreement, any of the Notes or any of
the other Loan Documents or the rights or remedies of the Administrative
Agent or the Banks hereunder or thereunder.
"Material Environmental Amount": an amount payable by the Company
and/or any of its Subsidiaries in excess of $25,000,000, in the case of
remedial costs, compliance costs, compensatory damages, punitive damages,
fines, penalties, or any combination thereof.
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"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls, and urea-formaldehyde insulation.
"Moody's": Xxxxx'x Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Note": as defined in Section 2.3.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Participant": as defined in subsection 10.6(b).
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pricing Grid": the Pricing Grid attached hereto as Annex A.
"Properties": collectively, all facilities and properties owned or
leased by the Company or any of its Subsidiaries.
"Purchasing Banks": as defined in subsection 10.6(c).
"Register": as defined in subsection 10.6(e).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .22, .23, .25, .27 or .28 of PBGC Reg. (S) 4043.
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"Required Banks": at any time, Banks the Commitment Percentages of
which aggregate at least 51%, provided, however, that after the Commitments
shall have terminated or expired such term shall mean Banks which are the
holders of at least 51% of the aggregate then outstanding principal amount
of Loans.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": each of the chief executive officer and the
president of the Company or, with respect to financial matters, each of the
chief financial officer and the treasurer of the Company.
"Sabroe": Sabroe Refrigeration A/S, a public limited company
incorporated under the laws of Denmark.
"S&P": Standard & Poor's Rating Group.
"Senior Debt Rating": the Company's senior unsecured long term debt
rating as determined from time to time by S&P and Moody's.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"SPC": as defined in subsection 10.6(h).
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person.
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Termination Date": June 1, 2000.
"Total Capital": at any time, the sum of Funded Debt plus
Consolidated Net Worth.
"Tranche": the collective reference to Eurodollar Loans the Interest
Periods with respect to all of which begin on the same date and end on the
same later date (whether or not such Loans shall originally have been made
on the same day).
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"Transfer Effective Date": as defined in each Commitment Transfer
Supplement.
"Transferee": as defined in subsection 10.6(f).
"Type": as to any Alternate Base Rate Loan or Eurodollar Loan, its
nature as an Alternate Base Rate Loan or a Eurodollar Loan, as the case may
be.
"Voting Stock": as to any Subsidiary, shares of stock or other
ownership interests of which having ordinary voting power (other than stock
or such other ownership interests having such power only by reason of the
happening of a contingency) in any election of the board of directors or
other managers of such Subsidiary.
"Year 2000 problem": the inability of computers, as well as embedded
microchips in non-computing devices, to perform properly date-sensitive
functions with respect to certain dates prior to, on and after December 31,
1999.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
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therein, all terms defined in this Agreement shall have the defined meanings
when used in the Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and accounting terms
partly defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.
2.1 Commitments. (a) Subject to the terms and conditions hereof, each
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Bank severally agrees to make revolving credit loans ("Loans") to the Company
from time to time during the Commitment Period in an aggregate principal amount
at any one time outstanding which does not exceed the amount of such Bank's
Commitment then in effect. During the Commitment Period the Company may use the
Commitments by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
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(b) The Loans may from time to time be (i) Eurodollar Loans, (ii)
Alternate Base Rate Loans or (iii) a combination thereof, as determined by the
Company and notified to the Administrative Agent in accordance with subsections
2.2 and 3.4, provided that no Loan shall be made as a Eurodollar Loan after the
day that is one month prior to the Termination Date.
(c) The Company shall repay all outstanding Loans on the Termination
Date.
2.2 Procedure for Borrowing. The Company may borrow under the
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Commitments during the Commitment Period on any Business Day, provided that the
Company shall give the Administrative Agent irrevocable notice in accordance
with subsection 10.2 (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if the requested Loans are to be initially Eurodollar
Loans or (b) one Business Day prior to the requested Borrowing Date, if the
requested Loans are to be initially Alternate Base Rate Loans), specifying (i)
the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether the
borrowing is to be of Eurodollar Loans, Alternate Base Rate Loans or a
combination thereof and (iv) if the borrowing is to be entirely or partly of
Eurodollar Loans, the amount of such Eurodollar Loans and the length of the
initial Interest Period therefor. Each borrowing under the Commitments shall be
in an amount equal to (x) in the case of Alternate Base Rate Loans, $5,000,000
or a whole multiple of $100,000 in excess thereof (or, if the aggregate then
Available Commitments are less than $5,000,000, such lesser amount) and (y) in
the case of Eurodollar Loans, $5,000,000 or a whole multiple of $100,000 in
excess thereof. Upon receipt of any such notice from the Company, the
Administrative Agent shall promptly notify each Bank thereof. Each Bank will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Company at the office of the
Administrative Agent specified in subsection 10.2 prior to 11:00 A.M., New York
City time, on the Borrowing Date requested by the Company in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Company by the Administrative Agent causing there to be wire
transferred to such account of the Company as the Company shall have designated
to the Administrative Agent the aggregate of the amounts made available to the
Administrative Agent by the Banks and in like funds as received by the
Administrative Agent.
2.3 Notes. The Company agrees that, upon request to the
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Administrative Agent by any Bank, the Company will execute and deliver to such
Bank a promissory note of the Company evidencing the Loans of such Bank,
substantially in the form of Exhibit A with appropriate insertions as to date
and principal amount (a "Note").
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS.
3.1 Facility, Utilization and Administrative Agent's Fees'. (a) The
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Company agrees to pay to the Administrative Agent for the account of each Bank a
fee (the "Facility Fee") based upon the average daily amount of the Commitment
of such Bank (whether or not used) at a rate per annum determined in accordance
with the Pricing Grid based upon the Senior Debt Rating in effect from time to
time, payable quarterly in arrears on the last Business Day of each March, June,
September and December and on the Termination Date or such earlier date as the
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Commitments shall terminate as provided herein, commencing on the first of such
dates to occur after the date hereof.
(b) The Company agrees to pay to the Administrative Agent for the
account of each Bank a fee (the "Utilization Fee") based upon the average daily
amount of the outstanding Loans at a rate per annum determined in accordance
with the Pricing Grid based upon the Senior Debt Rating in effect from time to
time, when and for as long as the aggregate outstanding principal amount of the
Loans exceeds 33% of the aggregate amount of the Commitments. The Utilization
Fee shall be payable quarterly in arrears on the last Business Day of each
March, June, September and December and on the Termination Date or such earlier
date as the Commitments shall terminate as provided herein, commencing on the
first of such dates to occur after the date hereof.
(c) Changes (whether increases or decreases thereof) in the rate for
Facility Fees and Utilization Fees based upon a change in the Senior Debt Rating
shall take effect on the first Business Day following the date of any such
change in the Senior Debt Rating.
(d) The Company agrees to pay to the Administrative Agent the fees in
the amounts and on the dates previously agreed to in writing by the Company and
the Administrative Agent.
3.2 Termination or Reduction of Commitments. The Company shall have
---------------------------------------
the right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate the Commitments or, from time to time, to reduce the amount
of the Commitments, provided that no such termination or reduction shall be
permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the aggregate principal amount of the Loans
then outstanding would exceed the Commitments then in effect. Any such
reduction shall be in an amount equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and shall reduce permanently on a pro rata basis
the Commitments then in effect.
3.3 Optional Prepayments. The Company may at any time and from time
--------------------
to time prepay the Loans, in whole or in part, without premium or penalty, upon
(i) at least one Business Day's irrevocable notice to the Administrative Agent,
in the case of Alternate Base Rate Loans or (ii) at least three Business Days'
irrevocable notice to the Administrative Agent, otherwise, in each case
specifying the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans, Alternate Base Rate Loans or a combination thereof, and, if of
a combination thereof, the amount allocable to each. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Bank. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest to such date on the
amount prepaid and, in the case of prepayments of Eurodollar Loans, any amounts
payable in connection therewith pursuant to subsection 3.13. Partial
prepayments shall be in an aggregate principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof.
3.4 Conversion and Continuation Options. (a) The Company may elect
-----------------------------------
from time to time to convert Eurodollar Loans, in whole or in part, to Alternate
Base Rate Loans by giving the Administrative Agent at least one Business Day's
prior irrevocable notice of such election, provided that any such conversion may
only be made on the last day of an Interest
14
Period with respect thereto. The Company may elect from time to time to convert
Alternate Base Rate Loans to Eurodollar Loans by giving the Administrative Agent
at least three Business Days' prior irrevocable notice of such election. Any
such notice of conversion to Eurodollar Loans shall specify the length of the
initial Interest Period or Interest Periods therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Bank thereof. All or
any part of outstanding Eurodollar Loans or Alternate Base Rate Loans may be
converted as provided herein, provided that (i) no Loan may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Required Banks, as the case may be, have determined
that such a conversion is not appropriate, (ii) any such conversion may only be
made if, after giving effect thereto, subsection 3.5 shall not have been
contravened and (iii) no Loan may be converted into a Eurodollar Loan after the
date that is one month prior to the Termination Date.
(b) Any Eurodollar Loans may be continued, in whole or in part, as
such upon the expiration of the then current Interest Period with respect
thereto by the Company giving notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
subsection 1.1, of the length of the next Interest Period to be applicable to
such Eurodollar Loans, provided that no Eurodollar Loan may be continued as such
(i) when any Event of Default has occurred and is continuing and the
Administrative Agent or the Required Banks, as the case may be, have determined
that such a continuation is not appropriate, (ii) if, after giving effect
thereto, subsection 3.5 would be contravened or (iii) after the date that is one
month prior to the Termination Date and provided, further, that if the Company
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Eurodollar Loans shall be automatically converted to Alternate Base Rate Loans
on the last day of such then expiring Interest Period.
3.5 Minimum Amounts of Tranches. All borrowings, conversions and
---------------------------
continuations of Eurodollar Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Eurodollar Loans comprising each Tranche shall be equal to $5,000,000 or
a whole multiple of $100,000 in excess thereof.
3.6 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
--------------------------------
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such
Interest Period plus the Applicable Margin for Eurodollar Loans.
(b) Each Alternate Base Rate Loan shall bear interest at a rate per
annum equal to the Alternate Base Rate plus the Applicable Margin for Alternate
Base Rate Loans.
(c) If all or a portion of the principal amount of any Loan or any
interest payable thereon shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise) or any fees or other amounts payable
under this Agreement are not paid when due, such overdue amount shall bear
interest from the date of such non-payment until such amount is paid in full (as
well after as before judgment) at a rate per annum equal to (i) in the case of
overdue principal amounts, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions
15
of this subsection plus 2% or (ii) in the case of overdue interest, fees or
other amounts, the rate that would otherwise be applicable to Alternate Base
Rate Loans plus 2%.
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this
subsection shall be payable on demand.
3.7 Computation of Interest and Fees. (a) Interest on Alternate Base
--------------------------------
Rate Loans the rate of interest on which is calculated on the basis of the Prime
Rate shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. Interest on Eurodollar Loans, interest on
Alternate Base Rate Loans the rate of interest on which is calculated on the
basis of the Federal Funds Rate, Facility Fees and Utilization Fees shall be
calculated on the basis of a 360-day year for the actual days elapsed. The
Administrative Agent shall as soon as practicable notify the Company and the
Banks of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the Alternate Base Rate or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change in the Alternate Base Rate or the
Eurocurrency Reserve Requirements becomes effective. Changes (whether increases
or decreases thereof) in the Applicable Margin based upon a change in the Senior
Debt Rating shall take effect on the first Business Day following the date of
any such change in the Senior Debt Rating. The Administrative Agent shall as
soon as practicable notify the Company and the Banks of the effective date and
the amount of each change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Banks in the absence of manifest error. The
Administrative Agent shall, at the request of the Company, deliver to the
Company a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 3.6(a), (b) or (c).
3.8 Inability to Determine Interest Rate. In the event that prior to
------------------------------------
the first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Company) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Required Banks that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to
such Banks (as conclusively certified by such Banks) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Company and the affected Banks as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as Alternate Base Rate Loans, (y) any
Alternate Base Rate Loans that were to have been converted on the first day of
such Interest Period to Eurodollar Loans shall be continued as Alternate Base
Rate Loans, and
16
(z) any outstanding Eurodollar Loans shall be converted, on the first day of
such Interest Period, to Alternate Base Rate Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made
or continued as such, nor shall the Company have the right to convert Alternate
Base Rate Loans to Eurodollar Loans.
3.9 Pro Rata Treatment and Payments. (a) All payments (including
-------------------------------
prepayments) to be made by the Company hereunder and under the Notes, whether on
account of principal, interest, fees or otherwise, shall be made without set off
or counterclaim and shall be made prior to 12:00 Noon, New York City time, on
the due date thereof to the Administrative Agent, subject to the provisions of
subsection 3.9(d), for the account of the Banks, at the Administrative Agent's
office specified in subsection 10.2, in Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the Banks
entitled to receive the same promptly upon receipt in like funds as received.
If any payment hereunder (other than payments on the Eurodollar Loans) becomes
due and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension. If any payment on a Eurodollar Loan becomes due and payable on a
day other than a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day unless the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Bank prior to a Borrowing Date for Loans that such Bank will not
make the amount that would constitute its share of the borrowing on such
Borrowing Date available to the Administrative Agent, the Administrative Agent
may assume that such Bank has made such amount available to the Administrative
Agent on such Borrowing Date, and the Administrative Agent may, in reliance upon
such assumption, make available to the Company a corresponding amount. If such
amount is made available to the Administrative Agent on a date after such
Borrowing Date, such Bank shall pay to the Administrative Agent on demand an
amount equal to the product of (i) the daily average Federal Funds Rate during
such period, times (ii) the amount of such Bank's share of such borrowing, times
(iii) a fraction the numerator of which is the number of days that elapse from
and including such Borrowing Date to the date on which such Bank's share of such
borrowing shall have become immediately available to the Administrative Agent
and the denominator of which is 360. A certificate of the Administrative Agent
submitted to any Bank with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Bank's share of
such borrowing is not in fact made available to the Administrative Agent by such
Bank within three Business Days of such Borrowing Date, the Administrative Agent
shall be entitled to recover such amount with interest thereon at the rate per
annum applicable to Alternate Base Rate Loans hereunder, on demand, from the
Company.
(c) Each borrowing by the Company of Loans shall be made ratably from
the Banks in accordance with their respective Commitments, and any reduction of
the Commitments shall be made pro rata among the Banks according to their
respective Commitments.
(d) Whenever any payment received by the Administrative Agent under
this Agreement or any Note is insufficient to pay in full all amounts then due
and payable to the
17
Administrative Agent and the Banks under this Agreement and the Notes, such
payment shall be distributed and applied by the Administrative Agent and the
Banks in the following order: first, to the payment of fees and expenses due and
-----
payable to the Administrative Agent under and in connection with this Agreement;
second, to the payment of all expenses due and payable under subsection 10.5,
------
ratably among the Banks in accordance with the aggregate amount of such payments
owed to each such Bank; third, to the payment of fees due and payable under
-----
subsections 3.1(a) and (b) ratably among the Banks in accordance with their
respective Commitments; fourth, to the payment of interest then due and payable
------
on the Loans, ratably among the Banks in accordance with the aggregate amount of
interest owed to each such Bank; and fifth, to the payment of the principal
-----
amount of the Loans which is then due and payable, ratably among the Banks in
accordance with the aggregate principal amount owed to each such Bank.
3.10 Illegality. Notwithstanding any other provision herein, if any
----------
change in any Requirement of Law or in the interpretation or application thereof
shall make it unlawful for any Bank to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of any such Bank hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert Alternate
Base Rate Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Bank's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to Alternate Base Rate Loans, on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs
on a day which is not the last day of the then current Interest Period with
respect thereto, the Company shall pay to such Bank such amounts, if any, as may
be required pursuant to subsection 3.13.
3.11 Requirements of Law. (a) In the event that the adoption of or
-------------------
any change in any Requirement of Law or in the interpretation or application
thereof or compliance by any Bank with any request or directive (whether or not
having the force of law) from any central bank or other Governmental Authority
made subsequent to the date hereof:
(i) shall subject such Bank to any tax of any kind whatsoever with
respect to this Agreement, any Note or any Eurodollar Loan made by it, or
change the basis of taxation of payments to any such Bank in respect
thereof (except for taxes covered by subsection 3.12 and changes in the
rate of tax on the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Bank which is not otherwise included in the determination of
the Eurodollar Rate hereunder; or
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Bank, by
an amount which such Bank deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof then, in any
18
such case, the Company shall promptly pay such Bank, upon its demand, any
additional amounts necessary to compensate such Bank for such increased cost or
reduced amount receivable. If any Bank becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Company,
through the Administrative Agent, of the event by reason of which it has become
so entitled. Each Bank also agrees to use its best efforts to notify the Company
of any event that could reasonably be expected to result in a claim for
additional amounts pursuant to this subsection, provided that the failure to
give any such notice shall not in any way have any adverse effect upon the
rights of such Bank under this subsection. A certificate as to any additional
amounts payable pursuant to this subsection submitted by such Bank, through the
Administrative Agent, to the Company shall be conclusive in the absence of
manifest error.
(b) In the event that any Bank shall have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Bank or
any corporation controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Bank's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Bank
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or such corporation's policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, after submission by such Bank to the Company
(with a copy to the Administrative Agent) of a written request therefor, the
Company shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such reduction.
(c) The covenants set forth in this subsection shall survive the
termination of this Agreement, and the payment of the Loans and all other
amounts payable hereunder.
3.12 Taxes. (a) All payments made by the Company under this
-----
Agreement and the Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding, in the case of the Administrative Agent and
each Bank, net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent or such Bank, as the case may be, as
a result of a present or former connection between the jurisdiction of the
government or taxing authority or any political subdivision or taxing authority
thereof or therein imposing such tax and the Administrative Agent or such Bank
(excluding a connection arising solely from the Administrative Agent or such
Bank having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or the Notes) (all such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions and withholding being
hereinafter called "Taxes"). If any Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Bank hereunder or under the
Notes, the amounts so payable to the Administrative Agent or such Bank shall be
increased to the extent necessary to yield to the Administrative Agent or such
Bank (after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement and the
Notes. Whenever any Taxes are payable by
19
the Company, as promptly as possible thereafter the Company shall send to the
Administrative Agent for its own account or for the account of such Bank, as the
case may be, a certified copy of an original official receipt received by the
Company showing payment thereof. If the Company fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, the Company
shall indemnify the Administrative Agent and the Banks for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent
or any Bank as a result of any such failure.
(b) Each Bank (or Transferee) that is not incorporated under the laws
of the United States of America or a state thereof agrees that it will deliver
to the Company and the Administrative Agent (i) two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224 or successor applicable
form, as the case may be, and (ii) an Internal Revenue Service Form W-8 or W-9
or successor applicable form. Each such Bank (or Transferee) also agrees to
deliver to the Company and the Administrative Agent two further copies of the
said Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms or
other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Company, and such extensions or renewals thereof as may reasonably be requested
by the Company or the Administrative Agent, unless in any such case an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank (or Transferee) from duly completing and delivering any such form with
respect to it and such Bank (or Transferee) so advises the Company and the
Administrative Agent. Such Bank (or Transferee) shall certify (i) in the case
of a Form 1001 or 4224, that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes and (ii) in the case of a Form W-8 or W-9, that it is entitled to an
exemption from United States backup withholding tax.
(c) Notwithstanding anything to the contrary in this subsection 3.12,
if the Internal Revenue Service determines that a Bank is a conduit entity
knowingly participating in a conduit financing arrangement as defined in Section
7701(1) of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder and the Company was not a participant in such arrangement
(other than as a borrower under this Agreement) (a "Conduit Financing
Arrangement"), then any taxes that the Company is required to withhold from
payments to such Bank by virtue of such Conduit Financing Arrangement shall be
excluded from the definition of "Taxes". Each Bank represents that it is not
knowingly participating in a Conduit Financing Arrangement.
(d) The agreements in this subsection shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
3.13 Indemnity. The Company agrees to indemnify each Bank and to
---------
hold each Bank harmless from any loss or expense which such Bank may sustain or
incur as a consequence of (a) default by the Company in payment when due of the
principal amount of or interest on any Eurodollar Loan, (b) default by the
Company in making a borrowing of, conversion into or
20
continuation of Eurodollar Loans after the Company has given a notice requesting
the same in accordance with the provisions of this Agreement, (c) default by the
Company in making any prepayment after the Company has given a notice thereof in
accordance with the provisions of this Agreement or (d) the making of a
prepayment of Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto, including, without limitation, in each case, any
such loss or expense arising from the reemployment of funds obtained by it or
from fees payable to terminate the deposits from which such funds were obtained.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make the
Loans, the Company hereby represents and warrants to the Administrative Agent
and each Bank that:
4.1 Financial Condition. (a) The unaudited pro forma capitalization
------------------- --- -----
table of the Company and its consolidated Subsidiaries as at December 31, 1998
attached as Schedule II hereto has been prepared giving effect (as if such
events had occurred on such date) to the Acquisition and the financing necessary
to consummate the Acquisition and presents accurately and fairly on a pro forma
--- -----
basis the estimated capitalization of the Company and its consolidated
Subsidiaries as at December 31, 1998, assuming that the Acquisition had actually
occurred at such date.
(b) The consolidated balance sheet of the Company and its
consolidated Subsidiaries as at December 31, 1998 and the related consolidated
statements of income, of shareholders' equity and of cash flows for the fiscal
year ended on such date, including the notes thereto, reported on by KPMG Peat
Marwick, copies of which have heretofore been furnished to each Bank, are
complete and correct and present fairly the consolidated financial condition of
the Company and its consolidated Subsidiaries as at such date, and the
consolidated results of their operations and their consolidated cash flows for
the fiscal year then ended. The unaudited consolidated condensed balance sheet
of the Company and its consolidated Subsidiaries as at March 31, 1999 and the
related unaudited consolidated condensed statements of income, of shareholders'
equity and of cash flows for the three-month period ended on such date,
including the notes thereto, certified by a Responsible Officer, copies of which
have heretofore been furnished to each Bank, are complete and correct and
present fairly the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the three-month period then
ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein). Neither the Company nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any Guarantee Obligation in an amount in excess of $5,000,000
or any material contingent liability or liability for taxes, or any material
long-term lease or unusual forward or long-term commitment, including, without
limitation, any material interest rate or foreign
21
currency swap or exchange transaction, which is not reflected in the foregoing
statements or in the notes thereto. During the period from March 31, 1999 to and
including the date hereof there has been no sale, transfer or other disposition
by the Company or any of its consolidated Subsidiaries of any material part of
its business or property and no purchase or other acquisition (other than the
Acquisition) of any business or property (including any capital stock of any
other Person) material in relation to the consolidated financial condition of
the Company and its consolidated Subsidiaries at March 31, 1999.
4.2 No Change. Since March 31, 1999 there has been no development or
---------
event nor any prospective development or event, which has had or could
reasonably be expected to have a Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of the Company
----------------------------------------
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification except to the extent that the failure to be so
qualified could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. The
-------------------------------------------------------
Company has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and the Notes and to authorize the execution,
delivery and performance of this Agreement and the Notes. No consent or
authorization of, filing with or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or the Notes. Each Loan Document executed and
delivered on the date hereof has been duly executed and delivered on behalf of
the Company. This Agreement and each Loan Document executed and delivered on
the date hereof constitute, and each other Loan Document when executed and
delivered will constitute, a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
------------
Agreement and the Notes, the borrowings hereunder and the use of the proceeds
thereof hereunder will not violate any Requirement of Law or Contractual
Obligation of the Company or of any of its Subsidiaries and will not result in,
or require, the creation or imposition of any Lien on any of its
22
or their respective properties or revenues pursuant to any such Requirement of
Law or Contractual Obligation.
4.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or any of
its Subsidiaries or against any of its or their respective properties or
revenues (a) with respect to this Agreement, the Notes or any of the
transactions contemplated hereby, or (b) which could reasonably be expected to
(i) result in an uninsured loss to the Company and/or its Subsidiaries in an
aggregate amount equal to or greater than $10,000,000 or (ii) have a material
adverse effect upon (x) the ability of the Company to perform its obligations
under this Agreement or any of the Notes or (y) the validity or enforceability
of this Agreement or any of the Notes or the rights or remedies of the
Administrative Agent or the Banks hereunder or thereunder.
4.7 No Default. Neither the Company nor any of its Subsidiaries is
----------
in default under or with respect to any of its Contractual Obligations where
such default could reasonably be expected to (i) result in a liability to the
Company and/or its Subsidiaries in an aggregate amount equal to or greater than
$5,000,000 or (ii) have a material adverse effect upon (x) the ability of the
Company to perform its obligations under this Agreement or any of the Notes or
(y) the validity or enforceability of this Agreement or any of the Notes or the
rights or remedies of the Administrative Agent or the Banks hereunder or
thereunder. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Company and its
----------------------------
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to all its other
property, and none of such property is subject to any Lien except as permitted
by subsection 7.3.
4.9 Intellectual Property. The Company and each of its Subsidiaries
---------------------
owns, or is licensed to use, all patents, trademarks, tradenames, copyrights,
technology, know-how and processes necessary for the conduct of its business as
currently conducted except for those the failure to own or license which could
not reasonably be expected to have a Material Adverse Effect (the "Intellectual
Property"). No claim has been asserted and is pending by any Person challenging
or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Company know of
any valid basis for any such claim. The use of such Intellectual Property by
the Company and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
4.10 No Burdensome Restrictions. No Requirement of Law or
--------------------------
Contractual Obligation of the Company or any of its Subsidiaries could
reasonably be expected to have a Material Adverse Effect.
4.11 Taxes. Each of the Company and its Subsidiaries has filed or
-----
caused to be filed all tax returns which, to the knowledge of the Company, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it
23
or any of its property and all other taxes, fees or other charges imposed on it
or any of its property by any Governmental Authority (other than any the amount
or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Company or its Subsidiaries, as the case may be);
no tax Lien has been filed, and, to the knowledge of the Company, no claim is
being asserted, with respect to any such tax, fee or other charge.
4.12 Federal Regulations. No part of the proceeds of any Loans will
-------------------
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect or for any purpose which violates the provisions of the Regulations of
such Board of Governors. If requested by any Bank or the Administrative Agent,
the Company will furnish to the Administrative Agent and each Bank a statement
to the foregoing effect in conformity with the requirements of FR Form U-1
referred to in said Regulation U.
4.13 ERISA. No Reportable Event has occurred during the five-year
-----
period prior to the date on which this representation is made or deemed made
with respect to any Plan, and each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The present value of all
accrued benefits under each Single Employer Plan maintained by the Company or
any Commonly Controlled Entity (based on those assumptions used to fund the
Plans) did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets of
such Plan allocable to such accrued benefits by more than $10,000,000. Neither
the Company nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan, and neither the Company nor any Commonly
Controlled Entity would become subject to any liability under ERISA in excess of
$10,000,000 if the Company or any such Commonly Controlled Entity were to
withdraw completely from all Multiemployer Plans as of the valuation date most
closely preceding the date on which this representation is made or deemed made.
No such Multiemployer Plan is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. The Company is not
-----------------------------------------
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. The
Company is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness.
4.15 Subsidiaries. Schedule III sets forth a true and complete list
------------
of all Subsidiaries of the Company at the date hereof.
4.16 Purpose of Loans. The proceeds of the Loans shall be used for
----------------
general corporate purposes, including to finance the Acquisition (or to
refinance other indebtedness incurred for such purpose) and to pay related fees
and expenses.
4.17 Environmental Matters.
---------------------
24
(a) The Properties do not contain, and have not previously
contained, any Materials of Environmental Concern under circumstances or in
amounts or concentrations which (i) constitute or constituted a violation
of, or (ii) could reasonably give rise to liability under, Environmental
Laws except in either case insofar as such violation or liability, or any
aggregation thereof, is not reasonably likely to result in the payment of a
Material Environmental Amount.
(b) The Properties and all operations at the Properties have
been and continue to be in compliance, in all material respects with all
Environmental Laws, and there is no contamination at, under or about the
Properties, or violation of any Environmental Law with respect to the
Properties which could materially interfere with the continued operation of
the Properties or materially impair the fair saleable value thereof.
(c) Neither the Company nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties, nor does the
Company have knowledge or reason to believe that any such notice will be
received or is being threatened except, in either case, insofar as such
notice or threatened notice, or any aggregation thereof, does not involve a
matter or matters that is or are reasonably likely to result in the payment
of a Material Environmental Amount.
(d) Materials of Environmental Concern have not been transported
or disposed of from the Properties in violation of, or in a manner or to a
location which could reasonably give rise to liability under, Environmental
Laws, nor have any Materials of Environmental Concern been generated,
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could reasonably give rise to liability
under, any Environmental Laws except, in either case, insofar as any such
violation or liability referred to above, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
(e) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Company, threatened, under
any Environmental Law to which the Company is or will be named as a party
with respect to the Properties, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental
Law with respect to the Properties except insofar as such proceeding,
action, decree, order or other requirement, or any aggregation thereof, is
not reasonably likely to result in the payment of a Material Environmental
Amount.
(f) There has been no release or threat of release of Materials
of Environmental Concern at or from the Properties, or arising from or
related to the operations of the Company in connection with the Properties,
in violation of or in amounts or in a manner that could reasonably give
rise to liability under Environmental Laws except insofar as any such
violation or liability referred to above, or any
25
aggregation thereof, is not reasonably likely to result in the payment of a
Material Environmental Amount.
4.18 Year 2000 Matters. On the basis of a comprehensive review and
-----------------
assessment of the Company's and its Subsidiaries' systems and equipment and
inquiry made of the Company's and its Subsidiaries' material suppliers, vendors
and customers, the Company reasonably believes that the Year 2000 problem,
including costs of remediation, will not result in a Material Adverse Effect.
The Company and its Subsidiaries have developed and are developing feasible
contingency plans which the Company believes in good faith to be adequate to
ensure uninterrupted and unimpaired business operation in the event of failure
of their own or a third party's systems or equipment due to the Year 2000
problem, including those of vendors, customers, and suppliers.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Effectiveness. The effectiveness of this
---------------------------
Agreement is subject to the satisfaction, on or prior to July 15, 1999, of the
following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
--------------
this Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank and (ii) for the account of each
Bank which shall have delivered to the Administrative Agent a request
therefor, a Note conforming to the requirements hereof and executed and
delivered by a duly authorized officer of the Company.
(b) Repricing of Existing Credit Agreement. The adjustment in the
--------------------------------------
pricing of the Amended and Restated Credit Agreement dated as of July 21,
1995 and amended as of May 28, 1997, to which the Company is a party, to
pricing substantially similar to that contemplated by the Pricing Grid
shall have occurred, or the Administrative Agent shall be reasonably
satisfied that such adjustment shall occur concurrently with the
effectiveness of this Agreement.
(c) Corporate Proceedings of the Company. The Administrative Agent
------------------------------------
shall have received, with a counterpart for each Bank, a copy of the
resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the Company authorizing (i) the
execution, delivery and performance of this Agreement and the Notes and
(ii) the borrowings contemplated hereunder, certified by the Secretary or
an Assistant Secretary of the Company as of the Effective Date, which
certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded and shall be in form and
substance satisfactory to the Administrative Agent.
(d) Incumbency Certificate. The Administrative Agent shall have
----------------------
received, with an executed counterpart for each Bank, a certificate of the
Secretary or an Assistant Secretary of the Company, dated the Effective
Date, as to the incumbency and signatures of the officers thereof executing
this Agreement and the Notes, together with evidence of the incumbency of
such Secretary or Assistant Secretary.
26
(e) Corporate Documents. The Administrative Agent shall have
-------------------
received, with a counterpart for each Bank, true and complete copies of the
certificate of incorporation and by-laws of the Company, certified as of
the Effective Date as complete and correct copies thereof by the Secretary
or an Assistant Secretary of the Company.
(f) Legal Opinions. The Administrative Agent shall have received,
--------------
with a counterpart for each Bank, the following executed legal opinions:
(i) the executed legal opinion of Miles & Stockbridge
P.C., counsel to the Company, substantially in the form of Exhibit B-
1;
(ii) the executed legal opinion of Xxxx X. Xxxxx, Esq.,
General Counsel of the Company, substantially in the form of Exhibit
B-2; and
(iii) the executed legal opinion of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Administrative Agent, substantially in the
form of Exhibit B-3.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
5.2 Conditions to Each Extension of Credit. The agreement of each
--------------------------------------
Bank to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Company in or pursuant to this Agreement shall be
true and correct in all material respects on and as of such date as if made
on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the Loans
requested to be made on such date.
Each borrowing by the Company hereunder shall constitute a representation and
warranty by the Company as of the date such borrowing is made that the
conditions contained in this subsection 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid or any Loan or other amount is
owing to any Bank or the Administrative Agent hereunder, the Company shall and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Subsidiaries to:
27
6.1 Financial Statements. Furnish to each Bank:
--------------------
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Company, a copy of the consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of
such year and the related consolidated statements of income, of
shareholders' equity and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by KPMG Peat Marwick
or other independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated condensed balance sheet of
the Company and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated condensed statements of income and
of shareholders' equity of the Company and its consolidated Subsidiaries
for such quarter and unaudited consolidated condensed statements of income,
of shareholders' equity and of cash flows of the Company and its
consolidated Subsidiaries for the portion of the fiscal year through the
end of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects when considered in relation to the
consolidated financial statements of the Company and its consolidated
Subsidiaries (subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to each Bank:
-------------------------------
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements stating
that in making the examination necessary therefor no knowledge was obtained
of any Default or Event of Default, except as specified in such
certificate; such certificate shall be accompanied by a certificate,
substantially in the form of Exhibit C, setting forth in reasonable detail
the calculations showing compliance by the Company with the provisions of
subsection 7.1;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.1(a) and 6.1(b), a certificate of a
Responsible Officer stating that, to the best of such Responsible Officer's
knowledge, the Company during such period has observed or performed all of
its covenants and other agreements, and satisfied every condition,
contained in this Agreement and the Notes to be observed, performed or
satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in such
certificate; such certificate shall
28
be accompanied by a certificate, substantially in the form of Exhibit C,
setting forth in reasonable detail the calculations showing compliance by
the Company with the provisions of subsection 7.1;
(c) within five days after the same are sent, copies of all financial
statements and reports which the Company sends to its stockholders, and
within five days after the same are filed, copies of all financial
statements and reports which the Company may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(d) promptly, such additional financial and other information as any
Bank may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
----------------------
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except (i) where the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on the
books of the Company or its Subsidiaries, as the case may be, or (ii) where the
failure to do so would not, in the aggregate, have a Material Adverse Effect.
6.4 Conduct of Business and Maintenance of Existence. Continue to
------------------------------------------------
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise permitted
pursuant to subsection 7.4; and comply with all Contractual Obligations and
Requirements of Law except (i) in the case of Requirements of Law and
Contractual Obligations other than those relating to Indebtedness and Guarantee
Obligations, to the extent that failure to comply therewith could not, in the
aggregate, have a Material Adverse Effect and (ii) in the case of Contractual
Obligations relating to any Indebtedness or Guarantee Obligation, to the extent
that the failure to comply therewith would not result in an Event of Default
under subsection 8(e).
6.5 Maintenance of Property; Insurance. Keep all property useful and
----------------------------------
necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks (but including
in any event public liability, product liability and business interruption) as
are usually insured against in the same general area by companies engaged in the
same or a similar business; and furnish to each Bank, upon written request, full
information as to the insurance carried.
6.6 Inspection of Property; Books and Records; Discussions. Keep
------------------------------------------------------
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Bank to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and
29
financial and other condition of the Company and its Subsidiaries with officers
and employees of the Company and its Subsidiaries and with its independent
certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent and
-------
each Bank of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Company
or any of its Subsidiaries and any Governmental Authority, which in either
case, if not cured or if adversely determined, as the case may be, would
have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of its
Subsidiaries in which the amount involved is $20,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event within
30 days after the Company knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan, or any withdrawal from, or the termination, Reorganization or
Insolvency of any Multiemployer Plan or (ii) the institution of proceedings
or the taking of any other action by the PBGC or the Company or any
Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any
Plan; and
(e) a development or event which could reasonably be expected to have
a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
6.8 Environmental Laws.
------------------
(a Comply with, and ensure compliance by all tenants and subtenants,
if any, with, all applicable Environmental Laws and obtain and comply in
all material respects with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws except to the extent that failure to do so could not be
reasonably expected to have a Material Adverse Effect;
(b Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environment Laws and promptly comply in all material respects will all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being
30
contested in good faith by appropriate proceedings and the pendency of such
proceedings could not be reasonably expected to have a Material Adverse
Effect; and
(c) Defend, indemnify and hold harmless the Administrative Agent and
the Banks, and their respective parents, subsidiaries, affiliates,
employees, agents, officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature known or unknown, contingent or
otherwise, arising out of, or in any way relating to the violation of,
noncompliance with or liability under any Environmental Laws in connection
with the operations of the Company, any of its Subsidiaries or the
Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, attorney's and
consultant's fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the
foregoing arise out of the gross negligence or willful misconduct of the
party seeking indemnification therefor. This indemnity shall continue in
full force and effect regardless of the termination of this Agreement.
SECTION 7. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Note remains outstanding and unpaid or any Loan or other amount is
owing to any Bank or the Administrative Agent hereunder, the Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
-----------------------------
(a) Interest Coverage. Permit the ratio of (i) Consolidated EBIT to
-----------------
(ii) Consolidated Interest Expense for any period of four consecutive
fiscal quarters ending on the last day of any fiscal quarter ending on or
after December 31, 1998 to be less than 2.50 to 1.00.
(b) Funded Debt to Capital. Permit the ratio of (i) Funded Debt to
----------------------
(ii) Total Capital at any time to be greater than 0.60 to 1.00.
7.2 Limitation on Indebtedness. Permit any Subsidiary to create,
--------------------------
incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness to the Company or any other Subsidiary;
(b) Indebtedness of any Foreign Subsidiary;
(c) Indebtedness for borrowed money of any Domestic Subsidiary,
provided that the aggregate amount of all such Indebtedness (other than
Indebtedness permitted by clause (a) or (d) of this subsection 7.2) of all
such Domestic Subsidiaries shall not exceed $200,000,000 at any one time
outstanding; and
31
(d) Indebtedness of a corporation which becomes a Domestic Subsidiary
after the date hereof, provided that (i) such Indebtedness was incurred by
such corporation prior to the time such corporation became a Domestic
Subsidiary and was not created in anticipation thereof and (ii) immediately
after giving effect to the acquisition of such corporation by the Company
or any Subsidiary no Default or Event of Default shall have occurred and be
continuing.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
-------------------
any Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in conformity with GAAP (or, in the case
of Foreign Subsidiaries, generally accepted accounting principles in effect
from time to time in their respective jurisdictions of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of the
Company or such Subsidiary;
(f) Liens on the Capital Stock or assets of any Foreign Subsidiary
securing Indebtedness of such Foreign Subsidiary permitted by subsection
7.2(b);
(g) Liens securing Indebtedness of any Domestic Subsidiary permitted
by subsection 7.2(c) incurred to finance the acquisition of fixed or
capital assets, provided that (i) such Liens shall be created substantially
simultaneously with the acquisition of such fixed or capital assets, (ii)
such Liens do not at any time encumber any property other than the property
financed by such Indebtedness, (iii) the amount of Indebtedness secured
thereby is not increased and (iv) the principal amount of Indebtedness
secured by any such Lien shall not exceed the original purchase price of
such property;
32
(h) Liens on the property or assets of a corporation which becomes a
Domestic Subsidiary after the date hereof securing Indebtedness permitted
by subsection 7.2(d), provided that (i) such Liens existed at the time such
corporation became a Domestic Subsidiary and were not created in
anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such corporation after the time such corporation
becomes a Domestic Subsidiary, and (iii) the amount of Indebtedness secured
thereby is not increased;
(i) Liens on assets of the Company and its Domestic Subsidiaries in
existence on the Effective Date listed in Schedule IV, securing
Indebtedness described therein, provided that no such Lien is spread to
cover any additional property after the Effective Date and that the amount
of Indebtedness secured thereby is not increased;
(j) Liens on any Capital Stock which is not Voting Stock, and on not
more than 20% of the Voting Stock, of any Foreign Subsidiary securing
Indebtedness of the Company or any Foreign Subsidiary in an aggregate
amount at any one time outstanding for the Company and all Foreign
Subsidiaries not to exceed 35% of Consolidated Net Worth (calculated as of
the last day of the then most recently ended fiscal period for which
financial statements shall have been delivered pursuant to subsection 4.1
or 6.1); and
(k) Liens not otherwise permitted by this subsection 7.3 securing
obligations in an aggregate amount at any time outstanding not to exceed 5%
of Consolidated Net Worth (calculated as of the last day of the then most
recently ended fiscal period for which financial statements shall have been
delivered pursuant to subsection 4.1 or 6.1).
7.4 Limitations on Fundamental Changes. Enter into any merger,
----------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Company may be merged or consolidated with
or into the Company (provided that the Company shall be the continuing or
surviving corporation) or with or into any one or more wholly owned
Subsidiaries of the Company (provided that the wholly owned Subsidiary or
Subsidiaries shall be the continuing or surviving corporation);
(b) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to the Company or any other wholly owned Subsidiary of the
Company;
(c) any Subsidiary the then aggregate book value of the assets of
which is less than $25,000,000 may do or undergo any of the fundamental
changes subject to this subsection 7.4; and
33
(d) any wholly owned Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets in connection with an
investment in a joint venture permitted by subsection 7.5(c).
7.5 Limitation on Investments, Loans and Advances. Make any advance,
---------------------------------------------
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business
(whether or not extended by the vendor of the product being financed);
(b) investments in Cash Equivalents;
(c) acquisitions of any business from any Person (whether pursuant to
an acquisition of stock, assets, a business unit or otherwise), investments
in joint ventures to conduct any business and other equity investments in
other Persons, provided that no such acquisition or investment shall be
permitted if (i) such business, joint venture or other Person is engaged in
a business other than a business of the same general type as now conducted
by the Company and its Subsidiaries or (ii) a Default or Event of Default
shall have occurred and be then continuing or would occur as a result
thereof;
(d) loans to officers of the Company, provided that each such loan
shall be either (i) secured by shares of Capital Stock of the Company, in
which case the amount of such loan shall at no time exceed 35% of the fair
market value of such shares or (ii) unsecured, in which case the aggregate
amount of all such unsecured loans at any one time outstanding may in no
event exceed $5,000,000;
(e) loans and advances to employees of the Company or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business;
(f) investments by the Company in its Subsidiaries and investments by
such Subsidiaries in the Company and in other Subsidiaries (excluding,
however, investments made by the transfer of tangible or intangible assets
used in the operations of the Company or any of its Subsidiaries); and
(g) purchases by the Company of its Indebtedness and of shares of its
Capital Stock.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall fail to pay any principal of any Loan when due
in accordance with the terms hereof; or the Company shall fail to pay any
interest, fee or
34
other amount payable hereunder or under any Note, within five days after
any such interest or fee or other amount becomes due in accordance with the
terms hereof; or
(b) Any representation or warranty made or deemed made by the Company
herein or which is contained in any certificate, document or financial or
other statement furnished at any time under or in connection with this
Agreement shall prove to have been incorrect in any material respect on or
as of the date made or deemed made, and such default, if it shall relate to
an incorrect representation or warranty that is capable of being remedied,
shall continue unremedied for a period of 30 days; or
(c) The Company shall default in the observance or performance of any
agreement contained in Section 7; or
(d) The Company shall default in the observance or performance of any
other agreement contained in this Agreement (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall
continue unremedied for a period of 30 days; or
(e) The Company or any of its Subsidiaries shall (i) default in any
payment of principal of or interest of any Indebtedness (other than the
Loans) or in the payment of any Guarantee Obligation (provided that the
principal amount of such Indebtedness or Guarantee Obligation exceeds,
individually or in the aggregate, $20,000,000), beyond the period of grace,
if any, provided in the instrument or agreement under which such
Indebtedness or Guarantee Obligation was created; or (ii) default in the
observance or performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation or contained in any
instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or holders of
such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or
such Guarantee Obligation to become payable; or
(f) (i) The Company or any of its material Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its assets, or the Company or any of its material
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Company or any of
its material Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Company or any of its material
Subsidiaries any case, proceeding
35
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Company or any of its
material Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) the Company or any of
its material Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due;
or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan,
(iii) a Reportable Event shall occur with respect to, or proceedings shall
commence to have a trustee appointed, or a trustee shall be appointed, to
administer or to terminate, any Single Employer Plan, which Reportable
Event or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Banks, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Company or any Commonly Controlled Entity shall, or in the reasonable
opinion of the Required Banks is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or Reorganization of,
a Multiemployer Plan or (vi) any other event or condition shall occur or
exist, with respect to a Plan; and in each case in clauses (i) through (vi)
above, such event or condition, together with all other such events or
conditions, if any, could subject the Company or any of its Subsidiaries to
any tax, penalty or other liabilities in the aggregate equal to or greater
than $20,000,000; or
(h) One or more judgments or decrees shall be entered against the
Company or any of its Subsidiaries involving in the aggregate a liability
(not paid or fully covered by insurance) of $20,000,000 or more and all
such judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) (i) Any Person, entity or "group" (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A)
shall have acquired beneficial ownership of such number of shares of the
outstanding classes of Capital Stock as have more than 30% of the aggregate
voting power for the election of directors of the Company, or (B) shall
obtain the power (whether or not exercised) to elect a majority of the
Company's directors or (ii) the Board of Directors of the Company shall not
consist of a majority of the then Continuing Directors; or
(j) The Acquisition shall not have been consummated, within 30 days
of the initial borrowing hereunder, for an aggregate purchase price
(including the assumption of indebtedness) not exceeding DKR 4.5 billion
pursuant to the Acquisition Agreement, with no material provision thereof
having been waived, amended, supplemented or
36
otherwise modified in any material respect without the consent of the
Administrative Agent; or
(k) (i) Any material governmental or material third party approvals
necessary or, in the discretion of the Administrative Agent, advisable in
connection with the Acquisition, shall not have been obtained and be in
full force and effect within 30 days of the initial borrowing hereunder, or
(ii) any applicable waiting period shall not have expired within 30 days of
the initial borrowing hereunder without any action being taken or
threatened by any competent authority that would restrain, prevent or
otherwise impose material adverse conditions on the Acquisition; provided
--------
that failure to obtain a governmental approval or for a waiting period to
expire shall not be an Event of Default if and so long as the Borrower
shall be attempting in good faith to obtain such approval or if the
Administrative Agent shall have agreed that failure to obtain such approval
or failure of such waiting period so to expire shall not constitute an
Event of Default;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Company,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts payable under
this Agreement and the Notes shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (x) with the consent of the Required Banks, the
Administrative Agent may, or upon the request of the Required Banks, the
Administrative Agent shall, by notice to the Company declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate
and (y) with the consent of the Required Banks, the Administrative Agent may, or
upon the request of the Required Banks, the Administrative Agent shall, by
notice of default to the Company, declare the Loans hereunder (with accrued
interest thereon) and all other amounts payable under this Agreement and the
Notes to be due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived.
SECTION 9. THE AGENT
9.1 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints CIBC-NYA as the Administrative Agent of such Bank under this Agreement
and the other Loan Documents, and each such Bank irrevocably authorizes CIBC-
NYA, as the administrative agent for such Bank, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any
37
fiduciary relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
9.3 Exculpatory Provisions. Neither the Administrative Agent nor any
----------------------
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Banks for any
recitals, statements, representations or warranties made by the Company or any
officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any Note or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Company to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Company.
9.4 Reliance by Administrative Agent. The Administrative Agent shall
--------------------------------
be entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Required Banks as it deems appropriate or it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the Notes in accordance with a
request of the Required Banks, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Banks and all future
holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be deemed
-----------------
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or the
Company referring to this
38
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Banks. The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Banks; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Banks.
9.6 Non-Reliance on Administrative Agent and Other Banks-. Each Bank
-----------------------------------------------------
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative
Agent hereinafter taken, including any review of the affairs of the Company,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Bank. Each Bank represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Company and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Bank also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Company. Except for notices, reports and other
documents expressly required to be furnished to the Banks by the Administrative
Agent hereunder, the Administrative Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Company which may come into the
possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
9.7 Indemnification. The Banks agree to indemnify the Administrative
---------------
Agent in its capacity as such (to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according to
the respective amounts which their Commitments (or, after the Commitments shall
have been terminated, Loans), as the case may be, bear to the amount of the
aggregate Commitments (or, after the Commitments shall have been terminated,
Loans) from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (whether before or after payment of the
Loans) be imposed on, incurred by or asserted against the Administrative Agent
in any way relating to or arising out of this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no such Bank shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting
39
solely from the Administrative Agent's gross negligence or willful misconduct.
The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
9.8 Administrative Agent in Its Individual Capacity. The
-----------------------------------------------
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Company as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to its Loans made or renewed by it, the
Administrative Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Bank and may exercise the same as though it
were not the Administrative Agent, and the terms "Bank" and "Banks" shall
include the Administrative Agent in its individual capacity.
9.9 Successor Administrative Agent. The Administrative Agent may
------------------------------
resign as Administrative Agent upon 10 days' notice to the Banks. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Banks shall appoint from among
the Banks a successor administrative agent for the Banks, which successor
administrative agent shall be approved by the Company, whereupon such
resignation shall become effective and such successor administrative agent shall
succeed to the rights, powers and duties of the Administrative Agent, and the
term "Administrative Agent" shall mean such successor administrative agent
effective upon its appointment, and the former Administrative Agent's rights,
powers and duties as Administrative Agent shall be terminated, without any other
or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 9 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any Note, nor
----------------------
any terms hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection. With the written consent of
the Required Banks, the Administrative Agent and the Company may, from time to
time, enter into written amendments, supplements or modifications hereto and to
the Notes for the purpose of adding any provisions to this Agreement or the
Notes or changing in any manner the rights of the Banks or of the Company
hereunder or thereunder or waiving, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
this Agreement or the Notes or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (a) reduce the amount or extend the maturity of
any Loan or any installment thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce or extend the time of payment of any fee
payable to any Bank hereunder, or change (except as provided for by subsection
3.2) the amount of any Bank's Commitment, in each case without the consent of
the Bank affected thereby, or (b) amend, modify or waive any provision of this
subsection or reduce the percentage specified in the
40
definition of Required Banks, or consent to the assignment or transfer by the
Company of any of its rights and obligations under this Agreement and the other
Loan Documents, in each case without the written consent of all the Banks, or
(c) amend, modify or waive any provision of Section 9 without the written
consent of the then Administrative Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Banks
and shall be binding upon the Company, the Banks, the Administrative Agent and
all future holders of the Loans. In the case of any waiver, the Company, the
Banks and the Administrative Agent shall be restored to their former position
and rights hereunder and under the other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
10.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or if deposited in the
mail, postage prepaid, and addressed as follows in the case of the Company and
the Administrative Agent, and as set forth in Schedule V in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Loans or if sent by
telecopy, when received:
The Company: York International Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx, Xxxxxxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000
with a copy to (but only in the case of a notice of
default, acceleration or termination of the Commitments
pursuant to Section 8):
Miles & Stockbridge P.C.
00 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
The Administrative
Agent: Canadian Imperial Bank of Commerce,
New York Agency
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndications Department
Telecopy: (000) 000-0000.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Administrative Agent or any Bank, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of
41
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans.
10.5 Payment of Expenses and Taxes. The Company agrees (a) to pay or
-----------------------------
reimburse the Administrative Agent for all its out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the Notes and
any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent, (b) to pay or reimburse each Bank and the
Administrative Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the Notes
and any such other documents, including, without limitation, fees and
disbursements of counsel to the Administrative Agent and to the several Banks
(including, without limitation, the allocated costs of in-house counsel), and
(c) to pay, indemnify, and hold each Bank and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the Notes
and any such other documents, and (d) to pay, indemnify, and hold each Bank and
the Administrative Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the Notes and any such other documents (all the foregoing specified
in this clause (d), collectively, the "indemnified liabilities"), provided, that
the Company shall have no obligation hereunder to the Administrative Agent or
any Bank with respect to indemnified liabilities arising from (i) the gross
negligence or willful misconduct of the Administrative Agent or any such Bank,
(ii) legal proceedings commenced against the Administrative Agent or any such
Bank by any security holder or creditor thereof arising out of and based upon
rights afforded any such security holder or creditor solely in its capacity as
such, or (iii) legal proceedings commenced against the Administrative Agent or
any such Bank by any other Bank or by any Transferee (as defined in subsection
10.6). The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations; Purchasing Banks.
--------------------------------------------------------
42
(a) This Agreement shall be binding upon and inure to the benefit of
the Company, the Banks, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that the Company
may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in
any Loan owing to such Bank, any Note held by such Bank, any Commitment of
such Bank or any other interest of such Bank hereunder and under the other
Loan Documents; provided, however, that no Participant shall have any right
to approve any amendment or waiver of any provision of this Agreement or
any other Loan Document except to the extent it would reduce the principal
of or interest on any advance hereunder or any fees payable hereunder or
postpone any date fixed for any payment hereunder. In the event of any
such sale by a Bank of participating interests to a Participant, such
Bank's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Bank shall remain solely responsible
for the performance thereof, such Bank shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents,
and the Company and the Administrative Agent shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement and the other Loan Documents. The Company
agrees that if amounts outstanding under this Agreement and the Loans are
due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall
be deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement and any Note to the same
extent as if the amount of its participating interest were owing directly
to it as a Bank under this Agreement or any Note, provided that such
Participant shall only be entitled to such right of set-off if it shall
have agreed in the agreement pursuant to which it shall have acquired its
participating interest to share with the Banks the proceeds thereof as
provided in subsection 10.7. The Company also agrees that each Participant
shall be entitled to the benefits of subsections 3.11, 3.12, 3.13 and 10.5
with respect to its participation in the Commitments and the Loans
outstanding from time to time; provided, that no Participant shall be
entitled to receive any greater amount pursuant to such subsections than
the transferor Bank would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Bank to such
Participant had no such transfer occurred.
(c) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to any
Bank or any affiliate thereof and, with the consent of the Company and the
Administrative Agent (neither of which consents shall be unreasonably
withheld), to one or more additional banks or financial institutions
("Purchasing Banks") all or any part of its rights and obligations under
this Agreement and the Notes pursuant to a Commitment Transfer Supplement,
substantially in the form of Exhibit D, executed by such Purchasing Bank,
such transferor Bank (and, in the case of a Purchasing Bank that is not
then a Bank or an affiliate thereof, by the Company and the Administrative
Agent) and delivered to the Administrative Agent for
43
its acceptance and recording in the Register; provided, that any such sale
(other than a sale to a Bank or an affiliate of a Bank) shall be at least
equal to $10,000,000 (except in the case of an assignment of all of a
Bank's interests under this Agreement or as otherwise agreed by the Company
and the Administrative Agent); and provided, further, that, without the
consent of the Company and the Administrative Agent, the aggregate amount
of any sales pursuant to this paragraph by any Bank that is a party to this
Agreement on the date hereof may not exceed 50% of the aggregate amount of
its Commitment set forth on Schedule I (it being agreed that, for purposes
of this proviso, sales by any Bank to any affiliate thereof shall be
disregarded except that any subsequent sales by such affiliate shall be
deemed to have been made by such Bank) and, provided, further, that any
sale by any Bank of all or any part of its Commitment need not be made
ratably among such Commitments in accordance with the respective amounts of
such Commitments, if any, held by such Bank immediately prior to such sale.
Upon such execution, delivery, acceptance and recording, from and after the
Transfer Effective Date determined pursuant to such Commitment Transfer
Supplement, (x) the Purchasing Bank thereunder shall be a party hereto and,
to the extent provided in such Commitment Transfer Supplement, have the
rights and obligations of a Bank hereunder with a Commitment and/or Loans
as set forth therein, and (y) the transferor Bank thereunder shall, to the
extent provided in such Commitment Transfer Supplement, be released from
its obligations under this Agreement (and, in the case of a Commitment
Transfer Supplement covering all or the remaining portion of a transferor
Bank's rights and obligations under this Agreement, such transferor Bank
shall cease to be a party hereto). Such Commitment Transfer Supplement
shall be deemed to amend this Agreement (including the Schedules hereto) to
the extent, and only to the extent, necessary to reflect the addition of
such Purchasing Bank and the resulting adjustment of Commitment Percentages
and amounts of affected Commitments arising from the purchase by such
Purchasing Bank of all or a portion of the rights and obligations of such
transferor Bank under this Agreement and the Notes.
(d) The Administrative Agent shall maintain at its address referred
to in subsection 10.2 a copy of each Commitment Transfer Supplement
delivered to it and a register (the "Register") for the recordation of the
names and addresses of the Banks and the Commitments of, and principal
amount of the Loans owing to, each Bank from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Company, the Administrative Agent and the Banks may treat each Person whose
name is recorded in the Register as the owner of the Commitments and Loans
and any Notes evidencing the Loans recorded therein for all purposes of
this Agreement. Any assignment of any Loan, whether or not evidenced by a
Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall
be registered on the Register only upon surrender for registration of
assignment or transfer of the Note evidencing such Loan, accompanied by a
duly executed Commitment Transfer Supplement, and thereupon one or more new
Notes shall be issued to the designated Purchasing Bank and, if applicable,
the transferor Bank. The Register shall be available for inspection by the
Company or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
44
(e) Upon its receipt of a Commitment Transfer Supplement executed by
a transferor Bank and Purchasing Bank (and, in the case of a Purchasing
Bank that is not then a Bank or an affiliate thereof, by the Company and
the Administrative Agent) together with payment to the Administrative Agent
of a registration and processing fee of $3,500, the Administrative Agent
shall (i) promptly accept such Commitment Transfer Supplement (ii) on the
Transfer Effective Date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance and
recordation to the Banks and the Company.
(f) The Company authorizes each Bank to disclose to any Participant
or Purchasing Bank (each, a "Transferee") and any prospective Transferee
any and all financial information in such Bank's possession concerning the
Company and its Affiliates which has been delivered to such Bank by or on
behalf of the Company or the Administrative Agent pursuant to this
Agreement or which has been delivered to such Bank by or on behalf of the
Company or the Administrative Agent in connection with such Bank's credit
evaluation of the Company and its Affiliates prior to becoming a party to
this Agreement.
(g) Nothing herein shall prohibit any Bank from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law.
(h) Notwithstanding anything to the contrary contained herein, any
Bank (a "Granting Bank") may grant to a special purpose funding vehicle (a
"SPC"), identified as such in writing from time to time by the Granting
Bank to the Administrative Agent and the Company, the option to provide the
Company all or any part of any Loan that such Granting Bank is obligated to
make to the Company pursuant to this Agreement; provided that (i) nothing
--------
herein shall constitute a commitment by any SPC to make any Loan or, except
as provided in the succeeding sentence, affect in any way the Commitment of
the Granting Bank, (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Loan, the Granting Bank
shall be obligated to make such Loan pursuant to the terms hereof. The
making of a Loan by an SPC hereunder shall utilize the Commitment of the
Granting Bank to the same extent, and as if, such Loan were made by such
Granting Bank. In the event that an SPC provides all or any part of any
Loan, the Company and the Administrative Agent shall continue to deal
solely and directly with the Granting Bank, including, without limitation,
with respect to the giving of notices and the delivery of financial
statements, certificates and other documents (including pursuant to Section
5) and information. Each party hereto hereby agrees that no SPC shall (i)
be liable for any indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Bank),
(ii) have any voting rights under subsection 10.1 or Section 8 or with
respect to any other matter under this Agreement to which the Banks are
entitled to give their consent (all of which voting rights shall remain
with the Granting Bank) or (iii) be entitled to receive any greater amount
pursuant to subsection 3.11, 3.12, 3.13 or 10.5 than the Granting Bank
would have been entitled to receive in respect of the amount of any Loan
provided by the SPC if the Granting Bank had in fact made such Loan. In
45
furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the payment in full of all
outstanding commercial paper or other senior indebtedness of any SPC, it
will not institute against, or join any other person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceedings under the laws of the United States or any State
thereof. In addition, notwithstanding anything to the contrary contained
in this subsection 10.6, any SPC may (i) with notice to, but without the
prior written consent of, the Company and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its
interests in any Loans to the Granting Bank or to any financial
institutions (consented to by the Company and Administrative Agent)
providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose on a
confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee
or credit or liquidity enhancement to such SPC. This subsection may not be
amended without the written consent of each SPC.
10.7 Adjustments; Set-off-.
---------------------
(a) If any Bank (a "benefitted Bank") shall at any time receive any
payment of all or part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the nature referred to in
subsection 8(f), or otherwise), in a greater proportion than any such
payment to or collateral received by any other Bank, if any, in respect of
such other Bank's Loans, or interest thereon, such benefitted Bank shall
purchase for cash from the other Banks such portion of each such other
Bank's Loans, or shall provide such other Banks with the benefits of any
such collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Bank to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Banks; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefitted Bank, such purchase shall be rescinded, and
the purchase price and benefits returned, to the extent of such recovery,
but without interest. The Company agrees that each Bank so purchasing a
portion of another Bank's Loan may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such
portion as fully as if such Bank were the direct holder of such portion.
(b) In addition to any rights and remedies of the Banks provided by
law, each Bank shall have the right (subject to the provisions of paragraph
(a) above), without prior notice to the Company, any such notice being
expressly waived by the Company to the extent permitted by applicable law,
upon any amount becoming due and payable by the Company hereunder or under
the Notes (whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency,
in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Bank or any branch or agency
thereof to or for the credit or the account of the Company. Each
46
Bank agrees promptly to notify the Company and the Administrative Agent
after any such set-off and application made by such Bank, provided that the
failure to give such notice shall not affect the validity of such set-off
and application.
10.8 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative Agent.
10.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of the Company, the Administrative Agent and the Banks
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Bank relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Company hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents, or for
recognition and enforcement of any judgement in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State of New York,
the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Company at its address set forth in
47
subsection 10.2 or at such other address of which the Administrative Agent
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this subsection any special, exemplary, punitive or consequential
damages.
10.13 Acknowledgements. The Company hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes;
(b) neither the Administrative Agent nor any Bank has any fiduciary
relationship to the Company, and the relationship between the
Administrative Agent and the Banks, on one hand, and the Company, on the
other hand, is solely that of debtor and creditor; and
(c) no joint venture exists among the Banks or among the Company and
the Banks.
10.14 WAIVERS OF JURY TRIAL. THE COMPANY, THE AGENT AND THE BANKS
---------------------
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
YORK INTERNATIONAL CORPORATION
By:_______________________________
Title: Treasurer
CANADIAN IMPERIAL BANK OF COMMERCE,
NEW YORK AGENCY, as Administrative Agent
By:________________________________
Title: Authorized Signatory
BANK OF AMERICA NT & SA, as Syndication Agent
and as a Bank
By:________________________________
Title:
CITIBANK, N.A., as Documentation Agent
and as a Bank
By:________________________________
Title:
CIBC, INC., as a Bank
By:_________________________________
Title:
BANCA COMMERCIALE ITALIANA - NEW
YORK BRANCH
By:________________________________
Title:
BANKBOSTON, N.A.
By:________________________________
Title:
BANK OF TOKYO - MITSUBISHI
TRUST COMPANY
By:________________________________
Title:
BG BANK A/S
By:________________________________
Title:
COMMERZBANK AKTIENGESELLSCHAFT,
NEW YORK AND GRAND CAYMAN BRANCHES
By:________________________________
Title:
By:________________________________
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:_____________________________
Title:
CREDIT SUISSE FIRST BOSTON
By:_____________________________
Title:
By:_____________________________
Title:
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By:____________________________
Title:
FIRST UNION NATIONAL BANK
By:____________________________
Title:
HSBC BANK USA
By:____________________________
Title:
ING BANK NV
By:____________________________
Title:
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By:____________________________
Title:
NATIONAL WESTMINSTER BANK PLC
By:____________________________
Title:
NATIONSBANK OF NORTH CAROLINA, N.A.
By:____________________________
Title:
PNC BANK, NATIONAL ASSOCIATION
By:____________________________
Title:
BANK OF NOVA SCOTIA
By:____________________________
Title:
THE CHASE MANHATTAN BANK
By:____________________________
Title:
FMB BANK
By:____________________________
Title:
UNIBANK A/S
By:____________________________
Title:
By:____________________________
Title:
