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Exhibit 10.1
SECOND AMENDED AND RESTATED CREDIT
AGREEMENT
among
BOSTON SCIENTIFIC CORPORATION,
The Several Lenders
from Time to Time Parties Hereto,
ABN AMRO BANK N.V.,
as Syndication Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent,
BARCLAYS BANK PLC,
as Syndication Agent,
CHASE SECURITIES INC.,
as Arranger and as Book Manager,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of September 4, 1998
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS.................................................... 1
1.1 Defined Terms.................................................. 1
1.2 Other Definitional Provisions.................................. 19
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS................................ 20
2.1 Revolving Credit Commitments................................... 20
2.2 Procedure for Revolving Credit Borrowing....................... 20
2.3 Facility Fee; Utilization Fee.................................. 21
2.4 Termination or Reduction of Commitments; Extension of
Termination Date............................................. 21
2.5 Repayment of Revolving Credit Loans............................ 23
2.6 CAF Advances................................................... 23
2.7 Procedure for CAF Advance Borrowing............................ 23
2.8 Repayment of CAF Advances...................................... 26
2.9 Certain Restrictions with Respect to CAF Advances............... 26
2.10 Multicurrency Commitments...................................... 26
2.11 Repayment of Multicurrency Loans;.............................. 27
2.12 Procedure for Multicurrency Borrowing.......................... 27
2.13 Termination or Reduction of Multicurrency Commitments.......... 27
2.14 Borrowings of Revolving Credit Loans and Refunding of Loans.... 28
SECTION 3. CERTAIN PROVISIONS APPLICABLE TO THE LOANS..................... 29
3.1 Optional and Mandatory Prepayments............................. 29
3.2 Conversion and Continuation Options............................ 30
3.3 Minimum Amounts and Maximum Number of Tranches................. 31
3.4 Interest Rates and Payment Dates............................... 31
3.5 Computation of Interest and Fees............................... 32
3.6 Inability to Determine Interest Rate........................... 33
3.7 Pro Rata Treatment and Payments................................ 33
3.8 Illegality..................................................... 35
3.9 Requirements of Law............................................ 35
3.10 Taxes.......................................................... 37
3.11 Indemnity...................................................... 38
3.12 Change of Lending Office; Removal of Lender.................... 38
3.13 Evidence of Debt............................................... 39
SECTION 4. LOCAL CURRENCY FACILITIES...................................... 40
4.1 Terms of Local Currency Facilities............................. 40
4.2 Reporting of Local Currency Outstandings....................... 41
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Page
SECTION 5. REPRESENTATIONS AND WARRANTIES................................. 42
5.1 Financial Condition............................................ 42
5.2 No Change...................................................... 42
5.3 Corporate Existence; Compliance with Law....................... 43
5.4 Corporate Power; Authorization; Enforceable Obligations........ 43
5.5 No Legal Bar................................................... 43
5.6 No Material Litigation......................................... 43
5.7 No Default..................................................... 44
5.8 Intellectual Property.......................................... 44
5.9 Taxes.......................................................... 44
5.10 Federal Regulations............................................ 44
5.11 ERISA.......................................................... 44
5.12 Investment Company Act; Other Regulations...................... 45
5.13 Purpose of Loans............................................... 45
5.14 Environmental Matters.......................................... 45
5.15 Disclosure..................................................... 46
5.16 Year 2000 Matters.............................................. 46
SECTION 6. CONDITIONS PRECEDENT........................................... 47
6.1 Conditions to Initial Loans.................................... 47
6.2 Conditions to Each Loan........................................ 48
SECTION 7. AFFIRMATIVE COVENANTS.......................................... 48
7.1 Financial Statements........................................... 48
7.2 Certificates; Other Information................................ 49
7.3 Payment of Obligations......................................... 49
7.4 Conduct of Business and Maintenance of Existence............... 49
7.5 Maintenance of Property; Insurance............................. 50
7.6 Inspection of Property; Books and Records; Discussions......... 50
7.7 Notices........................................................ 50
7.8 Consummation of Xxxxxxxxx Acquisition.......................... 51
SECTION 8. NEGATIVE COVENANTS............................................. 51
8.1 Funded Debt Ratio.............................................. 51
8.2 Limitation on Liens............................................ 51
8.3 Limitation on Fundamental Changes.............................. 52
SECTION 9. EVENTS OF DEFAULT.............................................. 53
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Page
SECTION 10. THE ADMINISTRATIVE AGENT; THE ARRANGER, THE BOOK MANAGER
AND THE SYNDICATION AGENTS......................................55
10.1 Appointment.....................................................55
10.2 Delegation of Duties............................................56
10.3 Exculpatory Provisions..........................................56
10.4 Reliance by Administrative Agent................................56
10.5 Notice of Default...............................................57
10.6 Non-Reliance on Administrative Agent and Other Lenders..........57
10.7 Indemnification.................................................57
10.8 Administrative Agent In Its Individual Capacity.................58
10.9 Successor Administrative Agent..................................58
10.10 The Arranger, the Book Manager and the Syndication Agents.......58
SECTION 11. GUARANTEE.......................................................59
11.1 Guarantee.......................................................59
11.2 No Subrogation..................................................59
11.3 Amendments, etc. with respect to the Obligations;
Waiver of Rights................................................59
11.4 Guarantee Absolute and Unconditional............................60
11.5 Reinstatement...................................................61
11.6 Payments........................................................61
11.7 "Lenders".......................................................61
SECTION 12. MISCELLANEOUS...................................................61
12.1 Amendments and Waivers..........................................61
12.2 Notices.........................................................62
12.3 No Waiver; Cumulative Remedies..................................63
12.4 Survival of Representations and Warranties......................63
12.5 Payment of Expenses and Taxes...................................64
12.6 Successors and Assigns; Participations and Assignments..........64
12.7 Adjustments; Set-off............................................67
12.8 Counterparts....................................................67
12.9 Severability....................................................67
12.10 Integration.....................................................67
12.11 GOVERNING LAW...................................................68
12.12 Submission To Jurisdiction; Waivers.............................68
12.13 Acknowledgements................................................68
12.14 European Economic and Monetary Union............................69
12.15 Confidentiality.................................................72
12.16 Loan Conversion/Participations..................................72
12.17 Judgment........................................................73
12.18 WAIVERS OF JURY TRIAL...........................................73
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SCHEDULES
Schedule I Names, Addresses and Commitments of Lenders
Schedule II Information Concerning Local Currency Loans
Schedule 8.2 Existing Liens
EXHIBITS
Exhibit A Form of Revolving Credit Note
Exhibit B Form of CAF Advance Note
Exhibit C Form of CAF Advance Request
Exhibit D Form of CAF Advance Offer
Exhibit E Form of CAF Advance Confirmation
Exhibit F Form of Closing Certificate
Exhibit G Form of Opinion of Counsel to Borrower
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Local Currency Facility Addendum
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September
4, 1998, among (i) BOSTON SCIENTIFIC CORPORATION, a Delaware corporation (the
"Borrower"), (ii) the Lenders (as herein after defined), (iii) ABN AMRO BANK
N.V., a Dutch banking association, BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association, and BARCLAYS BANK PLC, a banking
corporation organized under the laws of England, as Syndication Agents (each in
such capacity, a "Syndication Agent", and collectively, the "Syndication
Agents"), (iv) CHASE SECURITIES INC., as Arranger (in such capacity, the
"Arranger") and as Book Manager (in such capacity, the "Book Manager"), and (v)
THE CHASE MANHATTAN BANK, a New York banking corporation, as administrative
agent for the Lenders hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, certain of the Lenders, the Arranger, the
Administrative Agent and others are parties to the Amended and Restated Credit
Agreement, dated as of June 10, 1997 (as amended, supplemented or otherwise
modified prior to the date hereof, the "Existing Credit Agreement"); and
WHEREAS, this Second Amended and Restated Credit Agreement amends
the Existing Credit Agreement in a manner requiring the consent of the Majority
Lenders (as defined in and with respect to the Existing Credit Agreement),
including the consent of each Lender (as defined therein) increasing any of its
Commitments;
WHEREAS, the Majority Lenders (as defined in and with respect to the
Existing Credit Agreement), including such Lenders, and the other parties hereto
have agreed to amend and restate the Existing Credit Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants and agreements herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
hereby agree that on the Closing Date the Existing Credit Agreement will be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%.
For purposes hereof: "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by Chase as its prime rate in
effect at its principal office in New York City (the Prime Rate not
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being intended to be the lowest rate of interest charged by Chase in
connection with extensions of credit to debtors); "Base CD Rate" shall
mean the sum of (a) the product of (i) the Three-Month Secondary CD Rate
and (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b) the C/D Assessment
Rate; "Three-Month Secondary CD Rate" shall mean, for any day, the
secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board of Governors of the Federal
Reserve System (the "Board") through the public information telephone line
of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New
York City received at approximately 10:00 A.M., New York City time, on
such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing
selected by it; and "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for the
day of such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it. Any change in
the ABR due to a change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively.
"ABR Loans": Revolving Credit Loans bearing interest based upon
the ABR.
"Adjusted Aggregate Committed Outstandings": with respect to each
Lender, the Aggregate Committed Outstandings of such Lender, plus the
amount of any participating interests purchased by such Lender pursuant to
subsection 12.16, minus the amount of any participating interests sold by
such Lender pursuant to subsection 12.16.
"Administrative Agent": Chase, together with its Affiliates, as
the arranger of the Commitments and as the agent for the Lenders under
this Agreement and the other Loan Documents.
"Affiliate": as to any Person, 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. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (a) vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b) direct or
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cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Aggregate Available Multicurrency Commitments": as at any date
of determination with respect to all Multicurrency Lenders, an amount
in Dollars equal to the sum of the Available Multicurrency Commitments
of all Multicurrency Lenders on such date.
"Aggregate Available Revolving Credit Commitments": as at any
date of determination with respect to all Lenders, an amount in Dollars
equal to the sum of the Available Revolving Credit Commitments of all
Lenders on such date.
"Aggregate Committed Outstandings": as at any date of determination
with respect to any Lender, an amount in Dollars equal to the sum of (a)
the Aggregate Revolving Credit Outstandings of such Lender on such date,
(b) the Dollar Equivalent of the Aggregate Multicurrency Outstandings of
such Lender on such date and (c) the Dollar Equivalent of the Aggregate
Local Currency Outstandings of such Lender on such date.
"Aggregate Local Currency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Local Currencies equal to the aggregate unpaid principal amount of such
Lender's Local Currency Loans.
"Aggregate Multicurrency Outstandings": as at any date of
determination with respect to any Lender, an amount in the applicable
Available Foreign Currencies equal to the aggregate unpaid principal
amount of such Lender's Multicurrency Loans.
"Aggregate Revolving Credit Commitments": the aggregate amount
of the Revolving Credit Commitments of all of the Lenders.
"Aggregate Revolving Credit Outstandings": as at any date of
determination with respect to any Lender, an amount in Dollars equal to
the aggregate unpaid principal amount of such Lender's Revolving Credit
Loans on such date.
"Aggregate Total Outstandings": as at any date of determination with
respect to any Lender, an amount in Dollars equal to the sum of (a) the
Aggregate Revolving Credit Outstandings of such Lender on such date, (b)
the Dollar Equivalent of the aggregate unpaid principal amount of such
Lender's CAF Advances on such date, (c) the Dollar Equivalent of the
Aggregate Multicurrency Outstandings of such Lender on such date and (d)
the Dollar Equivalent of the Aggregate Local Currency Outstandings of such
Lender on such date.
"Agreement": this Second Amended and Restated Credit Agreement,
as amended, supplemented or otherwise modified from time to time.
"Agreement Currency": as defined in subsection 12.17(b).
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"Applicable Margin": with respect to each day for each Type of
Loan, the rate per annum based on the Ratings in effect on such day, as
set forth under the relevant column heading below:
Eurodollar Loans
Rating /Multicurrency Loans ABR Loans
------ -------------------- ---------
Rating I .220% 0%
Rating II .250% 0%
Rating III .275% 0%
Rating IV .325% 0%
Rating V .500% 0%
"Assignee": as defined in subsection 12.6(c).
"Available Foreign Currencies": Deutsche Marks, French Francs,
Japanese Yen, Irish Pounds and any other available and
freely-convertible non-Dollar currency selected by the Borrower and
approved by the Administrative Agent and the Multicurrency Lenders.
"Available Multicurrency Commitment": as at any date of
determination with respect to any Multicurrency Lender (after giving
effect to the making and payment of any Revolving Credit Loans required to
be made on such date pursuant to subsection 2.14), an amount in Dollars
equal to the lesser of (a) the excess, if any, of (i) the amount of such
Multicurrency Lender's Multicurrency Commitment in effect on such date
over (ii) the Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Multicurrency Lender on such date and (b) the excess,
if any, of (i) the amount of such Lender's Revolving Credit Commitment in
effect on such date over (ii) the Aggregate Committed Outstandings of such
Lender on such date.
"Available Revolving Credit Commitment": as at any date of
determination with respect to any Lender (after giving effect to the
making and payment of any Revolving Credit Loans required to be made on
such date pursuant to subsection 2.14), an amount in Dollars equal to the
excess, if any, of (a) the amount of such Lender's Revolving Credit
Commitment in effect on such date over (b) the Aggregate Committed
Outstandings of such Lender on such date.
"Board": as defined in the definition of ABR.
"Book Manager": as defined in the preamble hereto.
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pursuant to
subsection 2.2, 2.7 or 2.12 as a date on which the Borrower requests the
Lenders to make Loans hereunder or, with respect to Local Currency Loans,
the date on which a Foreign Subsidiary Borrower requests Local Currency
Lenders to make Local
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Currency Loans to such Foreign Subsidiary Borrower pursuant to the
Local Currency Facility to which such Foreign Subsidiary Borrower and
Local Currency Lenders are parties.
"Business": as defined in subsection 5.14.
"Business Day": (a) when such term is used in respect of a day on
which a Loan denominated in an Available Foreign Currency or Local
Currency is to be made, a payment is to be made in respect of such Loan,
an Exchange Rate is to be set in respect of such Available Foreign
Currency or Local Currency or any other dealing in such Available Foreign
Currency or Local Currency is to be carried out pursuant to this
Agreement, such term shall mean a London Banking Day which is also a day
on which banks are open for general banking business in the city which is
the principal financial center of the country of issuance of such
Available Foreign Currency or Local Currency, (b) when such term is used
to describe a day on which a borrowing, payment or interest rate
determination is to be made in respect of a Eurodollar Loan or a LIBO Rate
CAF Advance, such day shall be a London Banking Day and (c) when such term
is used in any context in this Agreement (including as described in the
foregoing clauses (a) and (b)), such term shall mean a day which, in
addition to complying with any applicable requirements set forth in the
foregoing clause (a) and (b), is 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.
"CAF Advance": each CAF (competitive advance facility) Advance
made pursuant to subsection 2.6.
"CAF Advance Availability Period": the period from and including
the Closing Date to and including the date which is 7 days prior to the
Termination Date.
"CAF Advance Confirmation": each confirmation by the Borrower of
its acceptance of CAF Advance Offers, which confirmation shall be
substantially in the form of Exhibit E and shall be delivered to the
Administrative Agent by facsimile transmission.
"CAF Advance Interest Payment Date": as to each CAF Advance,
each interest payment date specified by the Borrower for such CAF
Advance in the related CAF Advance Request.
"CAF Advance Maturity Date": as to any CAF Advance, the date
specified by the Borrower pursuant to subsection 2.7(d)(ii) in its
acceptance of the related CAF Advance Offer.
"CAF Advance Note": as defined in subsection 3.13(e).
"CAF Advance Offer": each offer by a Lender to make CAF Advances
pursuant to a CAF Advance Request, which offer shall contain the
information
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specified in Exhibit D and shall be delivered to the Administrative Agent
by telephone, immediately confirmed by facsimile transmission.
"CAF Advance Request": each request by the Borrower for Lenders to
submit bids to make CAF Advances, which request shall contain the
information in respect of such requested CAF Advances specified in Exhibit
C and shall be delivered to the Administrative Agent in writing, by
facsimile transmission, or by telephone, immediately confirmed by
facsimile transmission.
"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.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
annual assessment rate in effect on such day which is payable by a member
of the Bank Insurance Fund maintained by the Federal Deposit Insurance
Corporation (the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification) within the meaning of 12 C.F.R. Section 327.4 (or any
successor provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such institution in
the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day,
as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of
the Board) in respect of new non-personal time deposits in Dollars having
a maturity of 30 days or more.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
"Closing Date": the first date, on or before December 31, 1998,
on which the conditions precedent set forth in subsection 6.1 shall be
satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Commitments": the collective reference to the Revolving Credit
Commitments and the Multicurrency Commitments.
"Committed Outstandings Percentage": on any date with respect
to any Lender, the percentage which the Adjusted Aggregate Committed
Outstandings of such Lender constitutes of the Adjusted Aggregate
Committed Outstandings of all Lenders.
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Commitments shall terminate as provided herein.
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"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes the
Borrower and which is treated as a single employer under Section 414 of
the Code.
"Consolidated Funded Debt": at any time, all Indebtedness of the
Borrower and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Worth": at any time, all amounts which would, in
accordance with GAAP, be included under shareholders' equity or classified
as temporary equity, as prescribed by the Financial Accounting Standards
Board or Securities and Exchange Commission (e.g. contingent stock
repurchase obligations), on a consolidated balance sheet of the Borrower
and its Subsidiaries as at such time; provided, that in computing
Consolidated Net Worth, no deductions shall be made with respect to
charges for purchased research and development related to the Xxxxxxxxx
Acquisition.
"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.
"Conversion Date": any date on which either (a) an Event of
Default under Section 9(e) has occurred or (b) the Commitments shall
have been terminated and/or the Loans shall have been declared
immediately due and payable pursuant to Section 9.
"Conversion Sharing Percentage": on any date with respect to any
Lender and any Loans of such Lender outstanding in any currency other than
Dollars, the percentage of such Loans such that, after giving effect to
the conversion of such Loans to Dollars and the purchase and sale by such
Lender of participating interests as contemplated by subsection 12.16, the
Committed Outstandings Percentage of such Lender will equal such Lender's
Revolving Credit Commitment Percentage on such date (calculated
immediately prior to giving effect to any termination or expiration of the
Commitments on the Conversion Date).
"Converted Loans: as defined in subsection 12.16(a).
"Default": any of the events specified in Section 9, whether or
not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Dollar Equivalent": with respect to an amount denominated in any
currency other than Dollars, the equivalent in Dollars of such amount
determined at the Exchange Rate on the date of determination of such
equivalent. In making any determination of the Dollar Equivalent for
purposes of calculating the amount of Loans to be borrowed from the
respective Lenders on any Borrowing Date, the Administrative Agent shall
use the relevant Exchange Rate in effect on the date on
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which the interest rate for such Loans is determined pursuant to the
provisions of this Agreement and the other Loan Documents.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, regulations, statutes, ordinances,
codes, decrees, or other enforceable requirements or orders of any
Governmental Authority or other Requirements of 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.
"Eurocurrency Base Rate": (a) with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, or a Multicurrency Loan
or CAF Advance denominated in any currency other than Pounds Sterling, the
rate per annum determined by the Administrative Agent to be the offered
rate for deposits in the applicable currency with a term comparable to
such Interest Period that appears on the applicable Telerate Page at
approximately 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period; provided, however, that if at any time
for any reason such offered rate for any such currency does not appear on
a Telerate Page, "Eurocurrency Base Rate" shall mean, with respect to each
day during each Interest Period pertaining to a Loan denominated in such
currency, the rate per annum equal to the average (rounded upward to the
nearest 1/16th of 1%) of the respective rates notified to the
Administrative Agent by each of the Reference Lenders as the rate at which
such Reference Lender is offered deposits in such currency at or about
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period in the London interbank market for delivery on the first
day of such Interest Period for the number of days comprised therein; and
(b) with respect to each day during each Interest Period pertaining to a
Multicurrency Loan or CAF Advance denominated in Pounds Sterling, the rate
per annum equal to the average (rounded upward to the nearest 1/16th of
1%) of the respective rates notified to the Administrative Agent by each
of the Reference Lenders as the rate at which such Reference Lender is
offered deposits in Pounds Sterling at or about 11:00 A.M., London time,
two Business Days prior to the beginning of such Interest Period in the
Paris interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein.
"Eurocurrency Rate": with respect to each day during each
Interest Period pertaining to a Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to
the nearest 1/100th of 1%):
Eurocurrency Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
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"Eurocurrency Reserve Requirements": for any day as applied to a
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 or other
Governmental Authority having jurisdiction with respect thereto dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
maintained by a member bank of such System.
"Eurodollar Loans": Revolving Credit Loans the rate of interest
applicable to which is based upon the Eurocurrency Rate for Dollars.
"Event of Default": any of the events specified in Section 9,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Utilization Day": any day on which (i) the sum of the
Aggregate Total Outstandings of all Lenders, plus the Aggregate Total
Outstandings of all Lenders under (and as defined in) the 364-Day
Agreement, exceeds (ii) 50% of the aggregate amount of the Revolving
Credit Commitments hereunder and the Revolving Credit Commitments under
(and as defined in) the 364-Day Agreement (or, in each case, with respect
to any day after termination of such Revolving Credit Commitments, 50% of
the aggregate amount of such Revolving Credit Commitments in effect on the
date immediately prior to the date on which such Revolving Credit
Commitments terminated).
"Exchange Rate": with respect to any non-Dollar currency on any
date, the rate at which such currency may be exchanged into Dollars, as
set forth on such date on the relevant Reuters currency page at or about
11:00 A.M., London time, on such date. In the event that such rate does
not appear on any Reuters currency page, the "Exchange Rate" with respect
to such non-Dollar currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed
upon by the Administrative Agent and the Borrower or, in the absence of
such agreement, such "Exchange Rate" shall instead be the Administrative
Agent's spot rate of exchange in the interbank market where its foreign
currency exchange operations in respect of such non-Dollar currency are
then being conducted, at or about 10:00 A.M., local time, on such date for
the purchase of Dollars with such non-Dollar currency, for delivery two
Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method as it deems applicable
to determine such rate, and such determination shall be conclusive absent
manifest error.
"Existing Credit Agreement": as defined in the recitals hereto.
"Facility Fee Rate": for each day during each calculation
period, the rate per annum based on the Ratings in effect on such day,
as set forth below:
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Facility
Rating Fee Rate
------ --------
Rating I .080%
Rating II .100%
Rating III .125%
Rating IV .175%
Rating V .250%
"Fee Commencement Date": the earlier of (i) October 5, 1998 and
(ii) the Closing Date.
"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.
"Fixed Rate CAF Advance": any CAF Advance made pursuant to a
Fixed Rate CAF Advance Request.
"Fixed Rate CAF Advance Request": any CAF Advance Request
requesting the Lenders to offer to make CAF Advances at a fixed rate
(as opposed to a rate composed of the Eurocurrency Rate plus (or minus)
a margin).
"Foreign Subsidiary Borrower": each Subsidiary of the Borrower
organized under the laws of a jurisdiction outside the United States
that the Borrower designates as a "Foreign Subsidiary Borrower" in a
Local Currency Facility Addendum.
"Funding Commitment Percentage": as at any date of determination
(after giving effect to the making and payment of any Loans made on such
date pursuant to subsection 2.14), with respect to any Lender, that
percentage which the Available Revolving Credit Commitment of such Lender
then constitutes of the Aggregate Available Revolving Credit Commitments.
"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 5.1.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee Obligation": as to any Person (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 unrelated
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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 reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"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 current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary
practices and earn-outs and other similar obligations in respect of
acquisition and other similar agreements), (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar
instrument, (c) all obligations of such Person under Financing Leases, (d)
all obligations of such Person in respect of acceptances issued or created
for the account of such Person 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.
"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 ABR Loan, the last day of
each March, June, September and December, (b) as to any Eurodollar Loan or
Multicurrency Loan having an Interest Period of three months or less, the
last day of such Interest Period, and (c) as to any Eurodollar Loan or
Multicurrency 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.
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"Interest Period": (a) with respect to any Eurodollar Loan or
Multicurrency Loan:
(i) initially, the period commencing on the Borrowing Date or
conversion date, as the case may be, with respect to such Eurodollar
Loan or Multicurrency Loan and ending one, two, three or six months
(or, if available to all Lenders, nine or twelve months) thereafter,
as selected by the Borrower 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 or
Multicurrency Loan and ending one, two, three or six months (or, if
available to all Lenders, nine or twelve months) thereafter, as
selected by the Borrower 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:
(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 in respect of any Loan made by any
Lender that would otherwise extend beyond the Termination Date
applicable to such Lender shall end on such Termination Date; and
(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
(b) with respect to any LIBO Rate CAF Advance, the period beginning
on the Borrowing Date with respect thereto and ending on the CAF Advance
Maturity Date with respect thereto.
"Judgment Currency": as defined in subsection 12.17(b).
"Lenders": collectively, each of the Lenders (as defined in the
Existing Credit Agreement) which are parties to the Existing Credit
Agreement on the Signing Date, and each other entity which becomes a
Lender hereunder on or after the Signing Date.
"LIBO Rate CAF Advance": any CAF Advance made pursuant to a LIBO
Rate CAF Advance Request.
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"LIBO Rate CAF Advance Request": any CAF Advance Request requesting
the Lenders to offer to make CAF Advances at an interest rate equal to the
Eurocurrency Rate for the currency of such CAF Advance plus (or minus) a
margin.
"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 and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan": any Revolving Credit Loan, CAF Advance, Multicurrency
Loan or Local Currency Loan, as the case may be.
"Loan Documents": this Agreement, any Notes and any document or
instrument evidencing or governing any Local Currency Facility.
"Loans to be Converted": as defined in subsection 12.16(a).
"Local Currency": any available and freely convertible
non-Dollar currency selected by a Foreign Subsidiary Borrower and
approved by the Administrative Agent.
"Local Currency Facility": any Qualified Credit Facility that
the Borrower designates as a "Local Currency Facility" pursuant to a
Local Currency Facility Addendum.
"Local Currency Facility Addendum": a Local Currency Facility
Addendum received by the Administrative Agent, substantially in the
form of Exhibit I, and conforming to the requirements of Section 4.
"Local Currency Facility Agent": with respect to each Local Currency
Facility, the Local Currency Lender acting as agent for the Local Currency
Lenders parties thereto (and, in the case of any Local Currency Facility
to which only one Lender is a party, such Lender).
"Local Currency Facility Maximum Borrowing Amount": as defined
in subsection 4.1(b).
"Local Currency Lender": any Lender (or, if applicable, any
Affiliate, branch or agency thereof) party to a Local Currency Facility.
"Local Currency Lender Maximum Borrowing Amount": as defined in
subsection 4.1(b).
"Local Currency Loan": any loan made pursuant to a Local
Currency Facility.
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"London Banking Day": any day on which banks in London are open
for general banking business, including dealings in foreign currency
and exchange.
"Majority Lenders": (a) at any time prior to the termination of the
Revolving Credit Commitments, Lenders, the Revolving Credit Commitment
Percentages of which aggregate more than 50%; and (b) at any time after
the termination of the Revolving Credit Commitments, Lenders whose
Aggregate Total Outstandings aggregate more than 50% of the Aggregate
Total Outstandings of all Lenders; provided that for purposes of this
definition, the Aggregate Total Outstandings of each Lender shall be
adjusted upward or downward so as to give effect to any participations or
assignments effected pursuant to subsection 12.16.
"Majority Multicurrency Lenders": at any time, Multicurrency
Lenders the Multicurrency Commitment Percentages of which aggregate
more than 50%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this or any of the other Loan Documents or the rights or
remedies of the Administrative Agent or the Lenders hereunder or
thereunder; provided that the acquisition related charges and purchased
research and development recorded or to be recorded in respect of the
Xxxxxxxxx Acquisition shall not be a Material Adverse Effect.
"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.
"Multicurrency Commitment": as to any Multicurrency Lender at any
time, its obligation to make Multicurrency Loans to the Borrower in an
aggregate amount in Available Foreign Currencies the Dollar Equivalent of
which does not exceed at any time outstanding the amount set forth
opposite such Multicurrency Lender's name in Schedule I under the heading
"Multicurrency Commitment", as such amount may be reduced from time to
time as provided in subsection 2.13 and the other applicable provisions
hereof.
"Multicurrency Commitment Percentage": as to any Multicurrency
Lender at any time, the percentage which such Multicurrency Lender's
Multicurrency Commitment at such time constitutes of the aggregate
Multicurrency Commitments of all Multicurrency Lenders at such time (or,
if the Multicurrency Commitments have terminated or expired, the
percentage which (a) the Dollar Equivalent of the Aggregate Multicurrency
Outstandings of such Multicurrency Lender at such time constitutes of (b)
the Dollar Equivalent of the Aggregate Multicurrency Outstandings of all
Multicurrency Lenders at such time).
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"Multicurrency Lender": each Lender having an amount greater
than zero set forth opposite such Lender's name in Schedule I under the
heading "Multicurrency Commitment."
"Multicurrency Loans": as defined in subsection 2.10.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 3.10.
"Non-Multicurrency Lender": each Lender which is not a
Multicurrency Lender.
"Notes": the collective reference to any Revolving Credit Notes
and any CAF Advance Notes.
"Notice of Local Currency Outstandings": with respect to each Local
Currency Facility Agreement, a notice from the relevant Local Currency
Facility Agent containing the information, delivered to the Person, in the
manner and by the time, specified for a Notice of Local Currency
Outstandings in Schedule II.
"Notice of Multicurrency Loan Borrowing": with respect to a
Multicurrency Loan, a notice from the Borrower containing the information
in respect of such Loan, delivered to the Person, in the manner and by the
time, specified for a Notice of Multicurrency Loan Borrowing in respect of
the currency of such Loan in Schedule II.
"Notice of Multicurrency Loan Continuation": with respect to a
Multicurrency Loan, a notice from the Borrower containing the information
in respect of such Loan, delivered to the Person, in the manner and by the
time, specified for a Notice of Multicurrency Loan Continuation in respect
of the currency of such Loan in Schedule II.
"Obligations": collectively, the unpaid principal of and interest on
the Loans and all other obligations and liabilities of each Foreign
Subsidiary Borrower under this Agreement and any Local Currency Facility
and other Loan Documents to which it is a party (including, without
limitation, interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the maturity of the
Loans and interest accruing at the then applicable rate provided in this
Agreement or any other applicable Loan Document after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to such Foreign Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, the
Notes, the other Loan Documents or any other document made, delivered or
given in connection therewith, in each case whether on account of
principal, interest,
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reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all fees and disbursements of counsel to
the Administrative Agent or to the Lenders that are required to be paid by
any Foreign Subsidiary Borrower pursuant to the terms of this Agreement or
any other Loan Document).
"Participant": as defined in subsection 12.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"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 Borrower 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.
"Properties": as defined in subsection 5.14.
"Qualified Credit Facility": a credit facility (a) providing for one
or more Local Currency Lenders to make loans denominated in a Local
Currency to a Foreign Subsidiary Borrower, (b) providing for such loans to
bear interest at a rate or rates determined by the Borrower and such Local
Currency Lender or Local Currency Lenders and (c) otherwise conforming to
the requirements of Section 4.
"Rating": the respective rating of each of the Rating Agencies
applicable to the long-term senior unsecured non-credit enhanced debt
of the Borrower, as announced by the Rating Agencies from time to time.
"Rating Agencies": collectively, S&P and Xxxxx'x.
"Rating Category": each of Rating I, Rating II, Rating III,
Rating IV and Rating V.
"Rating I, Rating II, Rating III, Rating IV and Rating V": the
respective Ratings set forth below:
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Rating
Category S&P Xxxxx'x
-------- --- -------
Rating I greater than or greater than or
equal to A- equal to A3
Rating II lower than A- lower than A3
and greater than and greater than or
or equal to BBB+ equal to Baa1
Rating III lower than BBB+ lower than Baa1
and greater than and greater than or
or equal to BBB equal to Baa2
Rating IV lower than BBB lower than Baa2
and greater than and greater than or
or equal to BBB- equal to Baa3
Rating V lower than or equal lower than or equal
to BB+ to Ba1
; provided, that (i) if on any day the Ratings of the Rating Agencies do
not fall in the same Rating Category, and the lower of such Ratings (i.e.,
the Rating Category designated by a numerically higher Roman numeral) is
one Rating Category lower than the higher of such Ratings, then the Rating
Category of the higher of such Ratings shall be applicable for such day,
(ii) if on any day the Ratings of the Rating Agencies do not fall in the
same Rating Category, and the lower of such Ratings is more than one
Rating Category lower than the higher of such Ratings, then the Rating
Category next higher from that of the lower of such Ratings shall be
applicable for such day, (iii) if on any day the Rating of only one of the
Rating Agencies is available, then the Rating Category of such Rating
shall be applicable for such day and (iv) if on any day a Rating is
available from neither of the Rating Agencies, then Rating V shall be
applicable for such day. Any change in the applicable Rating Category
resulting from a change in the Rating of a Rating Agency shall become
effective on the date such change is publicly announced by such Rating
Agency.
"Reference Lenders": Chase, Bank of America National Trust and
Savings Association, Barclays Bank PLC and ABN AMRO Bank N.V.
"Register": as defined in subsection 12.6(d).
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
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"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. Section 4043.
"Requested Local Currency Loans": as defined in subsection
2.14(b).
"Requested Multicurrency Loans": as defined in subsection
2.14(a).
"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": with respect to the Borrower, the chief
executive officer and the president of the Borrower or, with respect to
financial matters, the chief financial officer of the Borrower.
"Revolving Credit Commitment": as to any Lender, the obligation of
such Lender to make Revolving Credit Loans to the Borrower hereunder in an
aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender's name on Schedule I under the
heading "Revolving Credit Commitment," as such amount may be reduced from
time to time in accordance with the provisions of this Agreement.
"Revolving Credit Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Revolving Credit Commitment at
such time constitutes of the Aggregate Revolving Credit Commitments at
such time (or, if the Revolving Credit Commitments have terminated or
expired, the percentage which (a) the Aggregate Revolving Credit
Outstandings of such Lender at such time then constitutes of (b) the
Aggregate Revolving Credit Outstandings of all Lenders at such time).
"Revolving Credit Loans": as defined in subsection 2.1.
"Revolving Credit Note": as defined in subsection 3.13(d).
"S&P": Standard & Poor's Ratings Services.
"Xxxxxxxxx Acquisition": the acquisition by the Borrower and its
Subsidiaries of the stock and assets related to the Xxxxxxxxx business
from Pfizer, Inc.
"Signing Date": the date on which the Lenders have signed this
Agreement.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
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"Subsidiary": as to any Person, a corporation, partnership 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
Borrower.
"Syndication Agents": as defined in the preamble hereto.
"Termination Date": with respect to a Lender, June 10, 2002, as
such date may be extended with respect to such Lender pursuant to
subsection 2.4.
"364-Day Facility": the Credit Agreement, dated as of the date
hereof, among the Borrower, the lenders parties thereto, The Chase
Manhattan Bank, as administrative agent, and others, providing for a
$600,000,000 revolving credit and competitive advance facility for a
364-day period.
"Tranche": the collective reference to Eurodollar Loans or
Multicurrency Loans the then current 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); Tranches
may be identified as "Eurodollar Tranches" or "Multicurrency Tranches".
"Transferee": as defined in subsection 12.6(f).
"Type": as to any Revolving Credit Loan, its nature as an ABR
Loan or a Eurodollar Loan.
"Utilization Fee Rate": .10% per annum.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in any Notes or any certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower 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.
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(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 Revolving Credit Commitments. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make revolving credit loans
("Revolving Credit Loans") in Dollars to the Borrower from time to time during
the Commitment Period so long as after giving effect thereto (i) the Available
Revolving Credit Commitment of each Lender is greater than or equal to zero and
(ii) the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
(b) The Revolving Credit Loans may from time to time be (i)
Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
by the Borrower and notified to the Administrative Agent in accordance with
subsections 2.2 and 3.2, provided that no Revolving Credit Loan shall be made as
a Eurodollar Loan after the day that is one month prior to the Termination Date.
2.2 Procedure for Revolving Credit Borrowing. The Borrower may
borrow under the Revolving Credit Commitments during the Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 10:00 A.M., New York City time, (a) three Business Days prior to the
requested Borrowing Date, if all or any part of the requested Revolving Credit
Loans are to be initially Eurodollar Loans or (b) on the requested Borrowing
Date, otherwise), in each case specifying (i) the amount to be borrowed, (ii)
the requested Borrowing Date, (iii) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and (iv) if the borrowing is to be
entirely or partly of Eurodollar Loans, the amount of such Type of Loan and the
length of the initial Interest Period therefor. Each borrowing under the
Revolving Credit Commitments (other than a borrowing under subsection 2.14)
shall be in an amount equal to (x) in the case of ABR Loans, $5,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the Aggregate Available
Revolving Credit Commitments are less than $1,000,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender thereof. Prior to
11:00 A.M., New York City time, on the Borrowing Date requested by the Borrower,
each Lender will make an amount equal to its Funding Commitment Percentage of
the principal amount of the Revolving Credit Loans requested to be made on such
Borrowing Date available to the Administrative Agent for the account of the
Borrower at the New York office of the Administrative Agent specified in
subsection 12.2 in funds immediately available to the Administrative Agent.
Except as otherwise provided in subsection 2.14, such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the account
of the Borrower on the books of
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such office with the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
2.3 Facility Fee; Utilization Fee. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Lender a facility fee for the
period from and including the Fee Commencement Date to the Termination Date,
computed at the Facility Fee Rate on the average daily amount of the Revolving
Credit Commitment of such Lender (regardless of usage) during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Termination Date or such earlier
date on which the Revolving Credit Commitments shall terminate as provided
herein, commencing on the first of such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee for each Excess Utilization Day during
the period from and including the Fee Commencement Date to the Termination Date,
computed at the Utilization Fee Rate on the average daily amount of the
Aggregate Total Outstandings of such Lender for each Excess Utilization Day
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the Termination Date
or such earlier date on which the Revolving Credit Commitments shall terminate
as provided herein, commencing on the first of such dates to occur after the
date hereof.
2.4 Termination or Reduction of Commitments; Extension of
Termination Date. (a) The Borrower shall have the right, upon not less than five
Business Days' notice to the Administrative Agent, to terminate the Revolving
Credit Commitments or, from time to time, to reduce the amount of the Revolving
Credit 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, either (a) the Aggregate Available Revolving
Credit Commitments would not be greater than or equal to zero or (b) the
Available Revolving Credit Commitments of any Lender would not be greater than
or equal to zero. Any such reduction shall be in an amount equal to $5,000,000
or a whole multiple thereof and shall reduce permanently the Revolving Credit
Commitments then in effect. The Administrative Agent shall give each Lender
prompt notice of any notice received from the Borrower pursuant to this
subsection 2.4(a).
(b)(i) The Borrower may request, in a notice given as herein
provided to the Administrative Agent and each of the Lenders not earlier than
January 10, 1999 and not later than March 10, 1999, that the Termination Date
(the "Existing Termination Date") be extended. Such notice shall specify the
requested new Termination Date (the "Requested Termination Date"), which shall
be not more than 24 months after the Existing Termination Date. Each Lender,
acting in its sole discretion, shall, not later than a date 30 days after its
receipt of any such notice from the Borrower, notify the Borrower and the
Administrative Agent in writing of its election to extend or not to extend the
Termination Date with respect to its Revolving Credit Commitment. Any Lender
which shall not timely notify the Borrower and the Administrative Agent of its
election to extend the Termination Date shall be deemed to have elected not to
extend the Termination Date with respect to its Revolving Credit Commitment (any
Lender who timely notifies the Borrower and the Administrative Agent of
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an election not to extend its Revolving Credit Commitment and any Lender so
deemed to have elected not to extend its Revolving Credit Commitment being
referred to as a "Terminating Lender"). The election of any Lender to agree to a
requested extension shall not obligate any other Lender so to agree.
(ii) If and only if Lenders holding at least 50% of the
Aggregate Revolving Credit Commitments on the date of the notice delivered by
the Borrower pursuant to subparagraph (i) above (including Revolving Credit
Commitments of all Terminating Lenders on such date) shall have agreed during
the 30 day period referred to in such subparagraph (i) to extend the Existing
Termination Date, then (A) the Revolving Credit Commitments of the Lenders other
than Terminating Lenders (the "Continuing Lenders") shall, subject to the other
provisions of this Agreement, be extended to the Requested Termination Date
specified in the notice from the Borrower, and as to such Lenders the term
"Termination Date", as used herein, shall on and after the date as of which the
requested extension is effective mean such Requested Termination Date, provided
that if such date is not a Business Day, then such Requested Termination Date
shall be the next preceding Business Day and (B) the Revolving Credit
Commitments of the Terminating Lenders shall continue until the Existing
Termination Date, and shall then terminate, and as to the Terminating Lenders,
the term "Termination Date", as used herein, shall continue to mean the Existing
Termination Date.
(c) In the event that the Termination Date shall have been extended
for the Continuing Lenders in accordance with paragraph (b) above and, in
connection with such extension, there are Terminating Lenders, the Borrower may,
at its own expense, require any Terminating Lender to transfer and assign in
whole or in part, without recourse (in accordance with subsection 12.6) all or
part of its interests, rights and obligations under this Agreement (other than
any CAF Advances owing to such Terminating Lender) to an assignee (which
assignee may be another Lender, if another Lender accepts such assignment) that
shall assume such assigned obligations and that shall agree that its Revolving
Credit Commitment will expire on the Termination Date in effect for Continuing
Lenders pursuant to such paragraph (b); provided, however, that (i) the Borrower
shall have received a written consent of the Administrative Agent in the case of
an assignee that is not a Lender (which consent shall not unreasonably be
withheld) and (ii) the assigning Lender shall have received from the Borrower or
such assignee full payment in immediately available funds of the principal of
and interest accrued to the date of such payment on the Loans made by it
hereunder to the extent that such Loans are subject to such assignment, the
facility fees and utilization fees accrued on such Lender's Revolving Credit
Commitment under subsection 2.3 to the date of such payment and all other
amounts owed to it hereunder (including any amounts that would be payable to the
assigning Lender pursuant to subsection 3.11 if such assignment were, instead, a
prepayment of the Loans of such Lender). Any such assignee's Termination Date
shall be the Termination Date in effect at the time of such assignment for the
Continuing Lenders. The Borrower shall not have any right to require a Lender to
assign any part of its interests, rights and obligations under this Agreement
pursuant to this paragraph (c) unless it has notified such Lender of its
intention to require the assignment thereof at least ten days prior to the
proposed assignment date.
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2.5 Repayment of Revolving Credit Loans. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Lender the then unpaid principal amount of each Revolving Credit Loan of
such Lender on the Termination Date applicable to such Lender (or such earlier
date on which the Revolving Credit Loans become due and payable pursuant to
Section 9). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Revolving Credit Loans from time to time outstanding
from the date hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in subsection 3.4.
2.6 CAF Advances. Subject to the terms and conditions of this
Agreement, the Borrower may borrow CAF Advances from time to time on any
Business Day during the CAF Advance Availability Period. LIBO Rate CAF Advance
may be denominated in Dollars or any other available and freely-convertible
eurocurrency acceptable to the bidding Lender, and Fixed Rate CAF Advances shall
be denominated in Dollars. CAF Advances may be borrowed in amounts such that the
aggregate amount of Loans outstanding at any time shall not exceed the aggregate
amount of the Revolving Credit Commitments at such time. Within the limits and
on the conditions hereinafter set forth with respect to CAF Advances, the
Borrower from time to time may borrow, repay and reborrow CAF Advances.
2.7 Procedure for CAF Advance Borrowing. (a) The Borrower shall
request CAF Advances by delivering a CAF Advance Request to the Administrative
Agent, not later than 12:00 Noon (New York City time) four Business Days prior
to the proposed Borrowing Date (in the case of a LIBO Rate CAF Advance Request),
and not later than 10:00 A.M. (New York City time) one Business Day prior to the
proposed Borrowing Date (in the case of a Fixed Rate CAF Advance Request). Each
CAF Advance Request in respect of any Borrowing Date may solicit bids for CAF
Advances on such Borrowing Date in an aggregate principal amount of $5,000,000
or an integral multiple of $1,000,000 in excess thereof (or, in the case of CAF
Advances to be denominated in a currency other than Dollars, and amount in such
currency the Dollar Equivalent of which is equal to $5,000,000 or $1,000,000, as
the case may be) and having not more than three alternative CAF Advance Maturity
Dates. The CAF Advance Maturity Date for each CAF Advance shall be the date set
forth therefor in the relevant CAF Advance Request, which date shall be (i) not
less than 7 days nor more than 360 days after the Borrowing Date therefor, in
the case of a Fixed Rate CAF Advance, (ii) not less than one month nor more than
twelve months after the Borrowing Date therefor, in the case of a LIBO CAF
Advance and (iii) not later than the Termination Date, in the case of any CAF
Advance. The Administrative Agent shall notify each Lender promptly by facsimile
transmission of the contents of each CAF Advance Request received by the
Administrative Agent.
(b) In the case of a LIBO Rate CAF Advance Request, upon receipt of
notice from the Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at the applicable Eurocurrency Rate plus (or
minus) a margin determined by such Lender in its sole discretion for each such
CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
Advance Offer to the Administrative Agent, before 10:30 A.M. (New York City
time) on the day that is three Business Days before the proposed Borrowing Date,
setting forth:
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(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date and the aggregate maximum amount of CAF Advances for all CAF Advance
Maturity Dates which such Lender would be willing to make (which amounts
may, subject to subsection 2.6, exceed such Lender's Revolving Credit
Commitment); and
(ii) the margin above or below the applicable Eurocurrency Rate at
which such Lender is willing to make each such CAF Advance.
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
City time) on the date which is three Business Days before the proposed
Borrowing Date of the contents of each such CAF Advance Offer received by it. If
the Administrative Agent, in its capacity as a Lender, shall elect, in its sole
discretion, to make any such CAF Advance Offer, it shall advise the Borrower of
the contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
the date which is three Business Days before the proposed Borrowing Date.
(c) In the case of a Fixed Rate CAF Advance Request, upon receipt of
notice from the Administrative Agent of the contents of such CAF Advance
Request, each Lender may elect, in its sole discretion, to offer irrevocably to
make one or more CAF Advances at a rate of interest determined by such Lender in
its sole discretion for each such CAF Advance. Any such irrevocable offer shall
be made by delivering a CAF Advance Offer to the Administrative Agent before
9:30 A.M. (New York City time) on the proposed Borrowing Date, setting forth:
(i) the maximum amount of CAF Advances for each CAF Advance Maturity
Date, and the aggregate maximum amount for all CAF Advance Maturity Dates,
which such Lender would be willing to make (which amounts may, subject to
subsection 2.6, exceed such Lender's Revolving Credit Commitment); and
(ii) the rate of interest at which such Lender is willing to make
each such CAF Advance.
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
City time) on the proposed Borrowing Date of the contents of each such CAF
Advance Offer received by it. If the Administrative Agent, in its capacity as a
Lender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
it shall advise the Borrower of the contents of its CAF Advance Offer before
9:15 A.M. (New York City time) on the proposed Borrowing Date.
(d) Before 11:30 A.M. (New York City time) three Business Days before
the proposed Borrowing Date (in the case of CAF Advances requested by a LIBO
Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the
proposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
CAF Advance Request), the Borrower, in its absolute discretion, shall:
(i) cancel such CAF Advance Request by giving the Administrative
Agent telephone notice to that effect, or
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(ii) by giving telephone notice to the Administrative Agent
(immediately confirmed by delivery to the Administrative Agent of a CAF
Advance Confirmation by facsimile transmission) (A) subject to the
provisions of subsection 2.7(e), accept one or more of the offers made by
any Lender or Lenders pursuant to subsection 2.7(b) or subsection 2.7(c),
as the case may be, and (B) reject any remaining offers made by Lenders
pursuant to subsection 2.7(b) or subsection 2.7(c), as the case may be.
(e) The Borrower's acceptance of CAF Advances in response to any CAF
Advance Offers shall be subject to the following limitations:
(i) the amount of CAF Advances accepted for each CAF Advance
Maturity Date specified by any Lender in its CAF Advance Offer shall not
exceed the maximum amount for such CAF Advance Maturity Date specified in
such CAF Advance Offer;
(ii) the aggregate amount of CAF Advances accepted for all CAF
Advance Maturity Dates specified by any Lender in its CAF Advance Offer
shall not exceed the aggregate maximum amount specified in such CAF
Advance Offer for all such CAF Advance Maturity Dates;
(iii) the Borrower may not accept offers for CAF Advances for any
CAF Advance Maturity Date in an aggregate principal amount in excess of
the maximum principal amount requested in the related CAF Advance Request;
and
(iv) if the Borrower accepts any of such offers, it must accept
offers based solely upon pricing for each relevant CAF Advance Maturity
Date and upon no other criteria whatsoever, and if two or more Lenders
submit offers for any CAF Advance Maturity Date at identical pricing and
the Borrower accepts any of such offers but does not wish to (or, by
reason of the limitations set forth in subsection 2.6, cannot) borrow the
total amount offered by such Lenders with such identical pricing, the
Borrower shall accept offers from all of such Lenders in amounts allocated
among them pro rata according to the amounts offered by such Lenders (with
appropriate rounding, in the sole discretion of the Borrower, to assure
that each accepted CAF Advance is an integral multiple of $1,000,000 or,
in the case of CAF Advances to be denominated in a currency other than
Dollars, an amount in such currency the Dollar Equivalent of which is
approximately equal to $1,000,000); provided that if the number of Lenders
that submit offers for any CAF Advance Maturity Date at identical pricing
is such that, after the Borrower accepts such offers pro rata in
accordance with the foregoing provisions of this paragraph, the CAF
Advance to be made by any such Lender would be less than $5,000,000 (or,
in the case of CAF Advances to be denominated in a currency other than
Dollars, an amount in such currency the Dollar Equivalent of which is
approximately equal to $5,000,000) principal amount, the number of such
Lenders shall be reduced by the Administrative Agent by lot until the CAF
Advances to be made by each such remaining Lender would be in a principal
amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (or, in the case of CAF Advances to be denominated in a currency
other than Dollars, an
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amount in such currency the Dollar Equivalent of which is approximately
equal to $5,000,000 or an integral multiple of $1,000,000 in excess
thereof).
(f) If the Borrower notifies the Administrative Agent that a CAF
Advance Request is cancelled pursuant to subsection 2.7(d)(i), the
Administrative Agent shall give prompt telephone notice thereof to the Lenders.
(g) If the Borrower accepts pursuant to subsection 2.7(d)(ii) one or
more of the offers made by any Lender or Lenders, the Administrative Agent
promptly shall notify each Lender which has made such an offer of (i) the
aggregate amount of such CAF Advances to be made on such Borrowing Date for each
CAF Advance Maturity Date and (ii) the acceptance or rejection of any offers to
make such CAF Advances made by such Lender. Before 12:00 Noon (New York City
time) on the Borrowing Date specified in the applicable CAF Advance Request (in
the case of CAF Advances denominated in Dollars) and before the funding time for
the relevant currency from time to time specified by the Administrative Agent by
notice to the Lenders (in the case of CAF Advances denominated in any currency
other than Dollars), each Lender whose CAF Advance Offer has been accepted shall
make available to the Administrative Agent the amount of CAF Advances to be made
by such Lender, in immediately available funds, at the funding office for the
relevant currency specified from time to time by the Administrative Agent by
notice to the Lenders. The Administrative Agent will make such funds available
to the Borrower as soon as practicable on such date at such office of the
Administrative Agent. As soon as practicable after each Borrowing Date, the
Administrative Agent shall notify each Lender of the aggregate amount of CAF
Advances advanced on such Borrowing Date and the respective CAF Advance Maturity
Dates thereof.
2.8 Repayment of CAF Advances. The Borrower hereby unconditionally
promises to pay to the Administrative Agent, for the account of each Lender
which has made a CAF Advance, on the applicable CAF Advance Maturity Date the
then unpaid principal amount of such CAF Advance. The Borrower shall have the
right to prepay any principal amount of any CAF Advance only with the consent of
the Lender to which such CAF Advance is owed. The Borrower hereby further agrees
to pay interest on the unpaid principal amount of each CAF Advance from the
Borrowing Date to the applicable CAF Advance Maturity Date at the rate of
interest specified in the CAF Advance Offer accepted by the Borrower in
connection with such CAF Advance (calculated on the basis of a 360-day year for
actual days elapsed), payable on each applicable CAF Advance Interest Payment
Date.
2.9 Certain Restrictions with Respect to CAF Advances. A CAF Advance
Request may request offers for CAF Advances to be made on not more than one
Borrowing Date and to mature on not more than three CAF Advance Maturity Dates.
No CAF Advance Request may be submitted earlier than five Business Days after
submission of any other CAF Advance Request.
2.10 Multicurrency Commitments. Subject to the terms and conditions
hereof, each Multicurrency Lender severally agrees to make revolving credit
loans (each, a "Multicurrency Loan") in any Available Foreign Currency to the
Borrower from time to time during the Commitment Period so long as after giving
effect thereto (a) the Available
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Multicurrency Commitment of each Multicurrency Lender is greater than or equal
to zero, (b) the aggregate outstanding principal amount of Multicurrency Loans
does not exceed an amount the Dollar Equivalent of which is $100,000,000 and (c)
the Aggregate Total Outstandings of all Lenders do not exceed the Aggregate
Revolving Credit Commitments. During the Commitment Period, the Borrower may use
the Multicurrency Commitments by borrowing, repaying the Multicurrency Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Any Multicurrency Lender may cause its Multicurrency Loans to
be made by any branch, affiliate or international banking facility of such
Multicurrency Lender, provided, that such Multicurrency Lender shall remain
responsible for all of its obligations hereunder and no additional taxes, costs
or other burdens shall be imposed upon the Borrower or the Administrative Agent
as a result thereof.
2.11 Repayment of Multicurrency Loans;. The Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Multicurrency Lender the then unpaid principal amount of each Multicurrency
Loan of such Multicurrency Lender on the Termination Date and on such other
date(s) and in such other amounts as may be required from time to time pursuant
to this Agreement. The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Multicurrency Loans advanced to it and from time
to time outstanding until payment thereof in full at the rates per annum, and on
the dates, set forth in subsection 3.4.
2.12 Procedure for Multicurrency Borrowing. The Borrower may request
the Multicurrency Lenders to make Multicurrency Loans during the Commitment
Period on any Business Day by delivering a Notice of Multicurrency Loan
Borrowing. Each borrowing under the Multicurrency Commitments shall be in an
amount in an Available Foreign Currency the Dollar Equivalent of which is equal
to at least $1,000,000 (or, if the then Aggregate Available Multicurrency
Commitments are less than $1,000,000, such lesser amount). Upon receipt of any
such Notice of Multicurrency Borrowing from the Borrower, the Administrative
Agent shall promptly notify each Multicurrency Lender thereof. Not later than
the funding time for the relevant Available Foreign Currency specified from time
to time by the Administrative Agent by notice to the Borrower and the
Multicurrency Lenders each Multicurrency Lender shall make an amount equal to
its Multicurrency Commitment Percentage of the principal amount of Multicurrency
Loans requested to be made on such Borrowing Date available to the
Administrative Agent at the funding office for the relevant Available Foreign
Currency specified from time to time by the Administrative Agent by notice to
the Borrower and the Multicurrency Lenders in the relevant Available Foreign
Currency and in immediately available funds. The amounts made available by each
Multicurrency Lender will then be made available to the Borrower at such funding
office and in like funds as received by the Administrative Agent.
2.13 Termination or Reduction of Multicurrency Commitments. The
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent (which shall give prompt notice thereof to each
Multicurrency Lender), to terminate the Multicurrency Commitments or, from time
to time, to reduce the amount of the Multicurrency 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
Available Multicurrency Commitment of any Multicurrency Lender
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would be less than zero. Any such reduction shall be in an amount equal to
U.S. $1,000,000 or a whole multiple of U.S. $100,000 in excess thereof and
shall reduce permanently the Multicurrency Commitments then in effect.
2.14 Borrowings of Revolving Credit Loans and Refunding of Loans.
(a) If on any Borrowing Date on which the Borrower has requested the
Multicurrency Lenders to make Multicurrency Loans (the "Requested Multicurrency
Loans"), (i) the aggregate principal amount of the Requested Multicurrency Loans
exceeds the Aggregate Available Multicurrency Commitments on such Borrowing Date
(before giving effect to the making and payment of any Loans required to be made
pursuant to this subsection 2.14 on such Borrowing Date) and, (ii) the Dollar
Equivalent of the amount of such excess is less than or equal to the aggregate
Available Revolving Credit Commitments of all Non-Multicurrency Lenders (before
giving effect to the making and payment of any Loans pursuant to this subsection
2.14 on such Borrowing Date), each Non-Multicurrency Lender shall make a
Revolving Credit Loan to the Borrower on such Borrowing Date, and the proceeds
of such Revolving Credit Loans shall be simultaneously applied to repay
outstanding Revolving Credit Loans, Local Currency Loans and/or Multicurrency
Loans of the Multicurrency Lenders (as directed by the Borrower) in each case in
amounts such that, after giving effect to (1) such borrowings and repayments and
(2) the borrowing from the Multicurrency Lenders of the Requested Multicurrency
Loans, the Committed Outstanding Percentage of each Lender will equal (as nearly
as possible) its Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such Revolving Credit Loans shall be made
available by each Non-Multicurrency Lender to the Administrative Agent at its
New York office specified in subsection 12.2 in Dollars and in immediately
available funds and the Administrative Agent shall apply the proceeds of such
Revolving Credit Loans toward repayment of outstanding Revolving Credit Loans
and/or Local Currency Loans of the Multicurrency Lenders (as directed by the
Borrower) and (y) concurrently with the repayment of such Loans on such
Borrowing Date, (I) the Multicurrency Lenders shall, in accordance with the
applicable provisions hereof, make the Requested Multicurrency Loans in an
aggregate amount equal to the amount so requested by the Borrower (but not in
any event greater than the Aggregate Available Multicurrency Commitments after
giving effect to the making of such repayment of any Loans on such Borrowing
Date) and (II) the Borrower shall pay to the Administrative Agent for the
account of the Lenders whose Loans to the Borrower are repaid on such Borrowing
Date pursuant to this subsection 2.14 all interest accrued on the amounts repaid
to the date of repayment, together with any amounts payable pursuant to
subsection 3.11 in connection with such repayment.
(b) Subject to the limitations on borrowings contained in a given
Local Currency Facility, if on any Borrowing Date on which a Foreign Subsidiary
Borrower has requested Local Currency Lenders to make Local Currency Loans (the
"Requested Local Currency Loans") under a Local Currency Facility to which such
Foreign Subsidiary Borrower and Local Currency Lenders are parties (i) the
aggregate principal amount of the Requested Local Currency Loans exceeds the
aggregate available amount of the commitments of such Local Currency Lenders
under such Local Currency Facility on such Borrowing Date (before giving effect
to the making and payment of any Revolving Credit Loans required to be made
pursuant to this subsection 2.14 on such Borrowing Date), (ii) after giving
effect to
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the Requested Local Currency Loans, the Dollar Equivalent of the aggregate
outstanding principal amount of Local Currency Loans of such Foreign Subsidiary
Borrower will be less than or equal to the aggregate commitments of such Local
Currency Lenders under such Local Currency Facility and (iii) the Dollar
Equivalent of the amount of the excess described in clause (i) above is less
than or equal to the Aggregate Available Revolving Credit Commitments of all
Lenders other than such Local Currency Lenders (before giving effect to the
making and payment of any Revolving Credit Loans pursuant to this subsection
2.14 on such Borrowing Date), each such other Lender shall make a Revolving
Credit Loan to the Borrower, on such Borrowing Date, and the proceeds of such
Revolving Credit Loans shall be simultaneously applied to repay outstanding
Revolving Credit Loans, Multicurrency Loans and/or Local Currency Loans of such
Local Currency Lenders (as directed by the Borrower) in each case in amounts
such that, after giving effect to (1) such borrowings and repayments and (2) the
borrowing from such Local Currency Lenders of the Requested Local Currency
Loans, the Committed Outstandings Percentage of each Lender will equal (as
nearly as possible) its Revolving Credit Commitment Percentage. To effect such
borrowings and repayments, (x) not later than 12:00 Noon, New York City time, on
such Borrowing Date, the proceeds of such Revolving Credit Loans shall be made
available by each such other Lender to the Administrative Agent at its New York
office specified in subsection 12.2 in Dollars and in immediately available
funds and the Administrative Agent shall apply the proceeds of such Revolving
Credit Loans toward the repayment of outstanding Revolving Credit Loans,
Multicurrency Loans and/or Local Currency Loans of such Local Currency Lenders
(as directed by the Borrower) and (y) concurrently with the repayment of such
Revolving Credit Loans on such Borrowing Date, (I) such Local Currency Lenders
shall, in accordance with the applicable provisions hereof, make the Requested
Local Currency Loans in an aggregate amount equal to the amount so requested by
such Foreign Subsidiary Borrower and (II) the relevant Foreign Subsidiary
Borrower shall pay to the Administrative Agent for the account of the Lenders
whose Loans to such Borrower are repaid on such Borrowing Date pursuant to this
subsection 2.14 all interest accrued on the amounts repaid to the date of
repayment, together with any amounts payable pursuant to subsection 3.11 in
connection with such repayment.
(c) If any borrowing of Revolving Credit Loans is required pursuant
to this subsection 2.14, the Borrower shall notify the Administrative Agent in
the manner provided for Revolving Credit Loans in subsection 2.2, except that
the minimum borrowing amounts set forth in subsection 2.2 shall not be
applicable to the extent that such minimum borrowing amounts exceed the amounts
of Revolving Credit Loans required to be made pursuant to this subsection 2.14.
SECTION 3. CERTAIN PROVISIONS
APPLICABLE TO THE LOANS
3.1 Optional and Mandatory Prepayments. (a) The Borrower may at any
time and from time to time prepay the Revolving Credit Loans, in whole or in
part, without premium or penalty (other than any amounts payable pursuant to
subsection 3.11 if such prepayment is of Eurodollar Loans and is made on a day
other than the last day of the Interest Period with respect thereto), upon at
least four Business Days' irrevocable notice to
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the Administrative Agent, specifying the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans, ABR 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
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein.
(b) The Borrower may at any time and from time to time prepay, without
premium or penalty (other than any amounts payable pursuant to subsection 3.11
if such prepayment is of Multicurrency Loans and is made on a day other than the
last day of the Interest Period with respect thereto), the Multicurrency Loans,
in whole or in part, upon at least three Business Days' irrevocable notice to
the Administrative Agent specifying the date and amount of prepayment. Upon the
receipt of any such notice, the Administrative Agent shall promptly notify each
Multicurrency Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein. Partial
prepayments of Multicurrency Loans shall be in an aggregate principal amount the
Dollar Equivalent of which is at least $1,000,000 or an integral multiple of
$100,000 in excess thereof.
(c)(i) If, at any time during the Commitment Period, for any reason the
Aggregate Total Outstandings of all Lenders exceed the Aggregate Revolving
Credit Commitments then in effect, the Borrower shall, without notice or demand,
immediately prepay the Revolving Credit Loans and/or the Multicurrency Loans in
amounts such that the sum of (A) the aggregate principal amount of the Revolving
Credit Loans so prepaid and (B) the Dollar Equivalent of the aggregate principal
amount of the Multicurrency Loans so prepaid, equals or exceeds the amount of
such excess.
(ii) If, at any time during the Commitment Period, for any reason
either (x) the Aggregate Total Outstandings of all Multicurrency Lenders exceed
the Aggregate Revolving Credit Commitments of the Multicurrency Lenders or (y)
the Aggregate Multicurrency Outstandings exceed the aggregate Multicurrency
Commitments, the Borrower shall, without notice or demand, immediately prepay
the Revolving Credit Loans and/or the Multicurrency Loans in amounts such that
any such excess is eliminated.
(iii) Each prepayment of Loans pursuant to this subsection 3.1(c)
shall be accompanied by any amounts payable under subsection 3.11 in connection
with such prepayment.
(iv) Notwithstanding the foregoing, mandatory prepayments of
Revolving Credit Loans or Multicurrency Loans that would otherwise be required
pursuant to this subsection 3.1(c) solely as a result of fluctuations in
Exchange Rates from time to time shall only be required to be made pursuant to
this subsection 3.1(c) on the last Business Day of each month on the basis of
the Exchange Rate in effect on such Business Day.
3.2 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the
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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 therefor. Upon receipt of any such
notice the Administrative Agent shall promptly notify each Lender thereof. All
or any part of outstanding Eurodollar Loans and ABR 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 has or the Majority Lenders have determined that such a
conversion is not appropriate and (ii) 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 as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower 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 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 has or the
Majority Lenders have determined that such a continuation is not appropriate or
(ii) after the date that is one month prior to the Termination Date, and
provided, further, that if the Borrower shall fail to give such notice or if
such continuation is not permitted, such Loans shall be automatically converted
to ABR Loans on the last day of such then expiring Interest Period.
(c) Any Multicurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving a Notice of Multicurrency Loan Continuation, provided, that if
the Borrower shall fail to give such Notice of Multicurrency Loan Continuation
by the deadline specified therefor in Schedule II, such Multicurrency Loans
shall automatically be continued for an Interest Period of one month.
3.3 Minimum Amounts and Maximum Number of Tranches. All borrowings,
conversions and continuations of Revolving Credit Loans and Multicurrency 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, (i) the aggregate principal amount of the Eurodollar Loans comprising
each Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of
$1,000,000 in excess thereof and (ii) the aggregate principal amount of the
Multicurrency Loans comprising each Multicurrency Tranche shall be in an amount
the Dollar Equivalent of which is at least $5,000,000. In no event shall there
be more than 7 Tranches outstanding at any time.
3.4 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 Eurocurrency Rate determined for such Interest
Period plus the Applicable Margin in effect for such day.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
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(c) Each Multicurrency Loan shall bear interest for each day that it
is outstanding at a rate per annum equal to the Eurocurrency Rate plus the
Applicable Margin in effect for such day.
(d) Each CAF Advance shall bear interest at the rate determined in
accordance with subsection 2.7.
(e) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon, (iii) any facility fee or (iv) any other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), the principal of the Loans and any such overdue
interest, commitment fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this subsection plus
2% or (y) in the case of any such overdue interest, facility fee or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest,
facility fee or other amount is paid in full (as well after as before judgment).
(f) Interest pursuant to this subsection shall be payable in arrears
on each Interest Payment Date or CAF Advance Interest Payment Date, as the case
may be, provided that interest accruing pursuant to paragraph (e) of this
subsection shall be payable from time to time on demand.
3.5 Computation of Interest and Fees. (a) Whenever it is calculated
on the basis of the Prime Rate, interest shall be calculated on the basis of a
365- (or 366-, as the case may be) day year for the actual days elapsed; and,
otherwise, interest and 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 Borrower and the Lenders of each determination of a
Eurocurrency Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR, the Eurocurrency Reserve Requirements, the C/D Assessment
Rate or the C/D Reserve Percentage shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such 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 Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to subsection 3.4(a), (b) or (d).
(c) If any Reference Lender shall for any reason no longer have a
Commitment or any Loans, such Reference Lender shall thereupon cease to be a
Reference Lender, and if, as a result, there shall only be one Reference Lender
remaining, the Administrative Agent (after consultation with the Lenders and
with the consent of the Borrower (which consent shall not be unreasonably
withheld)) shall, by notice to the
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Borrower and the Lenders, designate another Lender as a Reference Lender so that
there shall at all times be at least two Reference Lenders.
(d) Each Reference Lender shall use its best efforts to furnish
quotations of rates to the Administrative Agent as contemplated hereby. If any
of the Reference Lenders shall be unable or shall otherwise fail to supply such
rates to the Administrative Agent upon its request, the rate of interest shall,
subject to the provisions of subsection 3.6, be determined on the basis of the
quotations of the remaining Reference Lenders or Reference Lender.
3.6 Inability to Determine Interest Rate. If 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 Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Lenders or the Majority Multicurrency Lenders, as the case may
be, that the Eurocurrency Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (w) any Eurodollar Loans or Multicurrency Loans, as the case may be,
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, provided, that, notwithstanding the provisions of subsection 2.2 or
2.12, the Borrower may cancel the request for such Eurodollar Loan or
Multicurrency Loan, as the case may be, by written notice to the Administrative
Agent one Business Day prior to the first day of such Interest Period and the
Borrower shall not be subject to any liability pursuant to subsection 3.11 with
respect to such cancelled request, (x) any Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as ABR Loans, (y) any outstanding Eurodollar Loans shall be converted,
on the first day of such Interest Period, to ABR Loans and (z) any Multicurrency
Loans to which such Interest Period relates shall be repaid on the first day of
such Interest Period. Until such notice has been withdrawn by the Administrative
Agent, no further Eurodollar Loans or Multicurrency Loans shall be made or
continued as such, nor shall the Borrower have the right to convert ABR Loans to
Eurodollar Loans.
3.7 Pro Rata Treatment and Payments. (a) Except as provided in
subsection 2.14, each payment (other than optional prepayments) of principal or
interest in respect of the Loans shall be made pro rata according to the amounts
then due and owing to the respective Lenders.
(b) Except as provided in subsection 2.14, each borrowing by the
Borrower of Revolving Credit Loans from the Lenders hereunder shall be made pro
rata according to the Funding Commitment Percentages of the Lenders in effect on
the date of such borrowing.
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Each payment by the Borrower on account of any facility fee hereunder and any
reduction of the Revolving Credit Commitments of the Lenders shall be allocated
by the Administrative Agent among the Lenders pro rata according to the
Revolving Credit Commitment Percentages of the Lenders. Except as provided in
subsection 2.14, each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
Revolving Credit Loans then due and owing to the Lenders. All payments
(including prepayments) to be made by the Borrower hereunder in respect of
amounts denominated in Dollars, 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, for the account of the Lenders, at the Administrative
Agent's office specified in subsection 12.2, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans or Multicurrency 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 or a Multicurrency
Loan becomes due and payable on a day other than a Business Day, the maturity of
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) 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.
(c) Each borrowing of Multicurrency Loans by the Borrower shall be
made, and any reduction of the Multicurrency Commitments shall be allocated by
the Administrative Agent, pro rata according to the Multicurrency Commitment
Percentages of the Multicurrency Lenders. Each payment (including each
prepayment) by the Borrower on account of principal of and interest on
Multicurrency Loans shall be allocated by the Administrative Agent pro rata
according to the respective principal amounts of the Multicurrency Loans then
due and owing by the Borrower to each Multicurrency Lender. All payments
(including prepayments) to be made by the Borrower on account of Multicurrency
Loans hereunder, whether on account of principal, interest, fees or otherwise,
shall be made without set-off or counterclaim and shall be made at or before the
payment time for the currency of such Multicurrency Loan from time to time
specified by the Administrative Agent by notice to the Multicurrency Lenders and
the Borrower, on the due date thereof to the Administrative Agent, for the
account of the Multicurrency Lenders, at the payment office for the currency of
such Multicurrency Loan from time to time specified by the Administrative Agent
by notice to the Multicurrency Lenders and the Borrower, in the currency of such
Multicurrency Loan and in immediately available funds. The Administrative Agent
shall distribute such payments to the Multicurrency Lenders entitled to receive
the same promptly upon receipt in like funds as received.
(d) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent
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may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to (i) the daily
average Federal Funds Effective Rate (in the case of a borrowing of Revolving
Credit Loans or CAF Advances denominated in Dollars) and (ii) the Administrative
Agent's reasonable estimate of its average daily cost of funds (in the case of a
borrowing of Multicurrency Loans or CAF Advances denominated in a currency other
than Dollars), in each case for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this subsection shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon equal to (i) the rate per annum applicable to ABR Loans
hereunder (in the case of a borrowing of Revolving Credit Loans or CAF Advances
or CAF Advances denominated in Dollars) and (ii) the Administrative Agent's
reasonable estimate of its average daily cost of funds plus the Applicable
Margin applicable to Multicurrency Loans (in the case of a borrowing of
Multicurrency Loans or CAF Advances denominated in a currency other than
Dollars), on demand, from the Borrower.
3.8 Illegality. Notwithstanding any other provision herein, if after
the date hereof the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof shall make it unlawful for any Lender
to make or maintain Eurodollar Loans or Multicurrency Loans as contemplated by
this Agreement, (a) the commitment of such Lender hereunder to make Eurodollar
Loans or Multicurrency Loans, continue Eurodollar Loans or Multicurrency Loans
as such and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled,
(b) such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to ABR 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 and (c) such Lender's Multicurrency Loans shall be
prepaid on the last day of the then current Interest Period with respect
thereto. 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
Borrower shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 3.11.
3.9 Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof (or, in the case of LIBO Rate CAF Advances, made subsequent to
acceptance by the Borrower of such LIBO Rate CAF Advance):
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Eurodollar Loan,
Multicurrency Loan or LIBO Rate CAF Advance made by it, or change the
basis of taxation of payments to
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such Lender in respect thereof (except for Non-Excluded Taxes covered by
subsection 3.10 and changes in the rate of tax on the overall net income
of such Lender);
(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 Lender which is not otherwise included in the
determination of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, Multicurrency Loans or LIBO Rate CAF
Advances or to reduce any amount receivable hereunder in respect thereof, then,
in any such case, the Borrower shall promptly pay such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable; provided, that the Borrower shall not be required to
pay to any Lender any amounts under this paragraph for any period prior to the
date on which such Lender gives notice to the Borrower that such amounts are
payable unless such Lender gives such notice within 180 days after it became
aware or should have become aware of the event giving rise to such payment
obligation.
(b) If any Lender shall have determined that after the date hereof
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
Lender or any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Lender's or such corporation's capital as
a consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrower shall promptly pay to such
Lender such additional amount or amounts as will compensate such Lender for such
reduction; provided, that the Borrower shall not be required to pay to any
Lender any amounts under this paragraph for any period prior to the date on
which such Lender gives notice to the Borrower that such amounts are payable
unless such Lender gives such notice within 180 days after it became aware or
should have become aware of the event giving rise to such payment obligation.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this
subsection submitted by such Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
agreements in this subsection shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
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3.10 Taxes. (a) All payments made by the Borrower under this
Agreement and any 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 net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Administrative Agent or any Lender
as a result of a present or former connection between the Administrative Agent
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent or such
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, this Agreement or any Note). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder or under any Note,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender that is not organized under the
laws of the United States of America or a state thereof if such Lender fails to
comply with the requirements of paragraph (b) of this subsection. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded 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 Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form 1001
or 4224, or successor applicable form, as the case may be, and (B) an
Internal Revenue Service Form W-8 or W-9, or successor applicable form, as
the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower; and
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(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower 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 Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender 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. Each Person that shall become a Lender or a
Participant pursuant to subsection 12.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this subsection, provided that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
3.11 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans, Multicurrency Loans or
CAF Advances after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the Borrower in
making any prepayment after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans, Multicurrency Loans or CAF Advances or the
conversion of Eurodollar Loans to ABR Loans on a day which is not the last day
of an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) or, in the case of CAF Advances, the
applicable CAF Advance Maturity Date (or proposed CAF Advance Maturity Date), in
each case at the applicable rate of interest for such Loans provided for herein
(excluding, however, the Applicable Margin or any positive margin applicable to
CAF Advances included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to such Bank on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.12 Change of Lending Office; Removal of Lender. Each Lender agrees
that if it makes any demand for payment under subsection 3.9 or 3.10(a), or if
any adoption or change of the type described in subsection 3.8 shall occur with
respect to it, (i) it will use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions and so long as such efforts would
not be disadvantageous to it, as determined in its sole discretion) to designate
a different lending office if the making of such a designation would
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reduce or obviate the need for the Borrower to make payments under subsection
3.9 or 3.10(a), or would eliminate or reduce the effect of any adoption or
change described in subsection 3.8 or (ii) it will, upon at least five Business
Days' notice from the Borrower to such Lender and the Administrative Agent,
assign, pursuant to and in accordance with the provisions of subsection 12.6(c),
to one or more Assignees designated by the Borrower all, but not less than all,
of such Lender's rights and obligations hereunder (other than rights in respect
of such Lender's outstanding CAF Advance), without recourse to or warranty by,
or expense to, such Lender, for a purchase price equal to the outstanding
principal amount of each Revolving Credit Loan then owing to such Lender plus
any accrued but unpaid interest thereon and any accrued but unpaid facility fees
and utilization fees owing thereto and, in addition, all additional costs and
reimbursements, expense reimbursements and indemnities, if any, owing in respect
of such Lender's Commitment hereunder at such time (including any amount that
would be payable under subsection 3.11 if such assignment were, instead, a
prepayment in full of all amounts owing to such Lender) shall be paid to such
Lender.
3.13 Evidence of Debt. (a) Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(b) The Administrative Agent shall maintain the Register pursuant to
subsection 12.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) in the case of Revolving Credit Loans, the amount of each Revolving
Credit Loan made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) in the case of Multicurrency Loans, the amount and currency of
each Multicurrency Loans and each Interest Period applicable thereto, (iii) in
the case of CAF Advances, the amount and currency of each CAF Advance made
hereunder, the CAF Advance Maturity Date thereof, the interest rate applicable
thereto and each CAF Advance Interest Payment Date applicable thereto, (iv) the
amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (v) both the amount of any sum
received by the Administrative Agent hereunder from the Borrower and each
Lender's share thereof.
(c) The entries made in the Register and the accounts of each Lender
maintained pursuant to subsection 3.13(a) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(d) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit A with appropriate insertions as to
date and principal amount (a "Revolving Credit Note").
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(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the CAF Advances of such Lender,
substantially in the form of Exhibit B with appropriate insertions (a "CAF
Advance Note").
SECTION 4. LOCAL CURRENCY FACILITIES
4.1 Terms of Local Currency Facilities. (a) Subject to the
provisions of this Section 4, the Borrower may in its discretion from time to
time designate any Subsidiary of the Borrower organized under the laws of any
jurisdiction outside the United States as a "Foreign Subsidiary Borrower" and
any Qualified Credit Facility to which such Foreign Subsidiary Borrower and any
one or more Lenders (or its Affiliates, agencies or branches) is a party as a
"Local Currency Facility", with the consent of each such Lender in its sole
discretion, by delivering a Local Currency Facility Addendum to the
Administrative Agent and the Lenders (through the Administrative Agent) executed
by the Borrower, each such Foreign Subsidiary Borrower and each such Lender,
provided, that on the effective date of such designation no Event of Default
shall have occurred and be continuing. Concurrently with the delivery of a Local
Currency Facility Addendum, the Borrower or the relevant Foreign Subsidiary
Borrower shall furnish to the Administrative Agent copies of all documentation
executed and delivered by such Foreign Subsidiary Borrower in connection
therewith, together with, if applicable, an English translation thereof. Except
as otherwise provided in this Section 4 or in the definition of "Qualified
Credit Facility" in subsection 1.1, the terms and conditions of each Local
Currency Facility shall be determined by mutual agreement of the relevant
Foreign Subsidiary Borrower(s) and Local Currency Lender(s). The documentation
governing each Local Currency Facility shall (i) contain an express
acknowledgement that such Local Currency Facility shall be subject to the
provisions of this Section 4, (ii) if more than one Lender is a party thereto,
designate a Local Currency Facility Agent for such Local Currency Facility and
(iii) include an opinion of counsel reasonably satisfactory to the
Administrative Agent from the jurisdiction in which such Local Currency Facility
is established that the documentation governing such Local Currency Facility is
enforceable in accordance with its terms. Each of the Borrower and, by agreeing
to any Local Currency Facility designation as contemplated hereby, each relevant
Local Currency Lender (if any) party thereto which is an Affiliate, branch or
agency of a Lender, acknowledges and agrees that each reference in this
Agreement to any Lender shall, to the extent applicable, be deemed to be a
reference to such Local Currency Lender. In the event of any inconsistency
between the terms of this Agreement and the terms of any Local Currency
Facility, the terms of this Agreement shall prevail.
(b) The documentation governing each Local Currency Facility shall
set forth (i) the maximum amount (expressed in Dollars) available to be borrowed
from all Local Currency Lenders under such Local Currency Facility (as the same
may be reduced from time to time, a "Local Currency Facility Maximum Borrowing
Amount") and (ii) with respect to each Local Currency Lender party to such Local
Currency Facility, the maximum amount (expressed in Dollars) available to be
borrowed from such Local Currency Lender thereunder (as the same may be reduced
from time to time, a "Local Currency Lender Maximum Borrowing Amount").
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(c) Except as otherwise required by applicable law, in no event
shall the Local Currency Lenders party to a Local Currency Facility have the
right to accelerate the Local Currency Loans outstanding thereunder, or to
terminate their commitments (if any) to make such Local Currency Loans prior to
the earlier of the stated termination date in respect thereof or the Termination
Date, except, in each case, in connection with an acceleration of the Loans or a
termination of the Commitments pursuant to Section 9 hereof, provided, that
nothing in this paragraph (c) shall be deemed to require any Local Currency
Lender to make a Local Currency Loan if the applicable conditions precedent to
the making of such Local Currency Loan set forth in the documentation governing
the relevant Local Currency Facility have not been satisfied. No Local Currency
Loan may be made under a Local Currency Facility if (i) after giving effect
thereto, the conditions precedent in subsection 6.2 hereof would not be
satisfied or (ii) after giving effect to the making of such Local Currency Loan
and the simultaneous application of the proceeds thereof, the Aggregate Total
Outstandings of all Lenders at any time exceeds the Aggregate Revolving Credit
Commitments.
(d) The relevant Foreign Subsidiary Borrower shall furnish to the
Administrative Agent copies of any amendment, supplement or other modification
(including any change in commitment amounts or in the Local Currency Lenders
participating in any Local Currency Facility) to the terms of any Local Currency
Facility promptly after the effectiveness thereof (together with, if applicable,
an English translation thereof). If any such amendment, supplement or other
modification to a Local Currency Facility shall (i) add a Local Currency Lender
as a Local Currency Lender thereunder or (ii) change the Local Currency Facility
Maximum Borrowing Amount or any Local Currency Lender Maximum Borrowing Amount
with respect thereto, the Borrower shall promptly furnish an appropriately
revised Local Currency Facility Addendum, executed by the Borrower, the relevant
Foreign Subsidiary Borrower and the affected Local Currency Lenders (or any
agent acting on their behalf), to the Administrative Agent and the Lenders
(through the Administrative Agent).
(e) The Borrower may terminate its designation of a facility as a
Local Currency Facility, with the consent of each Local Currency Lender party
thereto in its sole discretion, by written notice to the Administrative Agent,
which notice shall be executed by the Borrower, the relevant Foreign Subsidiary
Borrower and each Local Currency Lender party to such Local Currency Facility
(or any agent acting on their behalf). Once notice of such termination is
received by the Administrative Agent, such Local Currency Facility and the loans
and other obligations outstanding thereunder shall immediately cease to be
subject to the terms of this Agreement.
4.2 Reporting of Local Currency Outstandings. (a) On the date of the
making of any Local Currency Loan having a maturity of 30 or more days to a
Foreign Subsidiary Borrower and on the last Business Day of each month on which
a Foreign Subsidiary Borrower has any outstanding Local Currency Loans, the
Local Currency Facility Agent for such Foreign Subsidiary Borrower, shall
deliver to the Administrative Agent a Notice of Local Currency Outstandings and
the Administrative Agent shall deliver a copy of such Notice of Local Currency
Outstandings to the Lenders. The Administrative Agent will, at the request of
any Local Currency Facility Agent, advise such Local Currency Facility Agent of
the Exchange Rate used by the Administrative Agent in calculating the Dollar
Equivalent of Local Currency Loans under the related Local Currency Facility on
any date.
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(b) For purposes of any calculation under this Agreement in which
the amount of the Aggregate Local Currency Outstandings of any Lender is a
component, the Administrative Agent shall make such calculation on the basis of
the Notices of Local Currency Outstanding received by it at least two Business
Days prior to the date of such calculation.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:
5.1 Financial Condition. The consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at December 31, 1997 and the
related consolidated statements of operations and of cash flows for the fiscal
year ended on such date, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to each Lender, are complete and correct and present
fairly the consolidated financial condition of the Borrower 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 balance sheet of the Borrower and its consolidated Subsidiaries as
at March 31, 1998 or, if later and prior to the Signing Date, the date of the
Borrower's most recent publicly available Form 10-Q and the related unaudited
consolidated statements of operations and of cash flows for the fiscal period
ended on such date, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and materially correct
and present fairly (subject to normal year-end audit adjustments) the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the fiscal period then ended. All such
annual financial statements, including the related schedules and notes thereto,
were, as of the date prepared, 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). The quarterly financial statements have been prepared in accordance
with generally accepted accounting principles for interim financial information
and with the instructions to Form 10-Q and Article 10 of Regulation S-X under
the Securities Act of 1933. Accordingly, such quarterly statements do not
include all of the information and footnotes required by GAAP for complete
financial statements. In the opinion of the Borrower, all adjustments
(consisting only of normal recurring accruals) considered necessary for a fair
presentation have been included. Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, material contingent
liability or material liability for taxes, or any material long-term lease or
material unusual forward or long-term commitment, including, without limitation,
any interest rate or foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto.
5.2 No Change. Since December 31, 1997 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
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5.3 Corporate Existence; Compliance with Law. Each of the Borrower
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 and (d) is in compliance with all Requirements of
Law, except to the extent that the failure of the foregoing clauses (a) (only
with respect to Subsidiaries of the Borrower), (c) and (d) to be true and
correct could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.4 Corporate Power; Authorization; Enforceable Obligations. The
Borrower has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and to borrow
hereunder and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice to or other
act by or in respect of, any Governmental Authority or any other Person is
required with respect to the Borrower or any of its Subsidiaries in connection
with the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Borrower is a
party. This Agreement and each other Loan Document to which the Borrower is, or
is to become, a party has been or will be, duly executed and delivered on behalf
of the Borrower. This Agreement and each other Loan Document to which the
Borrower is, or is to become, a party constitutes or will constitute, a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
5.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries which could reasonably be expected to
have a Material Adverse Effect and will not result in, or require, the creation
or imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Requirement of Law or Contractual Obligation which
could reasonably be expected to have a Material Adverse Effect.
5.6 No Material Litigation. Except as disclosed in the Borrower's
Form 10-Q dated March 31, 1998 or, if later and prior to the Signing Date, the
date of the Borrower's most recent publicly available Form 10-Q, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or
against the Borrower or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to any of the Loan Documents
or any of the transactions contemplated hereby, or (b) which could reasonably be
expected to have a Material Adverse Effect.
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5.7 No Default. Neither the Borrower nor any of its Subsidiaries is
in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.8 Intellectual Property. Except as disclosed in the Borrower's
Form 10-Q dated March 31, 1998 or, if later and prior to the Signing Date, the
date of the Borrower's most recent publicly available Form 10-Q, the Borrower
and each of its Subsidiaries owns, or is licensed to use, all 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"). Except as disclosed in the Borrower's Form
10-Q dated March 31, 1998 or, if later and prior to the Signing Date, the date
of the Borrower's most recent publicly available Form 10-Q, 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 Borrower know of any valid basis for any
such claim, except for such claims that, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. Except as disclosed in the
Borrower's Form 10-Q dated March 31, 1998 or, if later and prior to the Signing
Date, the date of the Borrower's most recent publicly available Form 10-Q, the
use of such Intellectual Property by the Borrower 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.
5.9 Taxes. Each of the Borrower and its Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of the Borrower, 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 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 Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed, and, to the knowledge of the Borrower, no material claim is being
asserted, with respect to any such tax, fee or other charge.
5.10 Federal Regulations. No part of the proceeds of any Loans will
be used in any manner which would violate Regulation U of the Board as now and
from time to time hereafter in effect.
5.11 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) 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 other than a
Multiemployer Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code, where the liability which could be
reasonably expected to result could have a Material Adverse Effect; provided,
however, that with respect to any Multiemployer Plan, such representation is
made only to the knowledge of the Borrower. No termination of a Single
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Employer Plan pursuant to Section 4041(c) or 4042 of ERISA has occurred, and no
Lien in favor of the PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan (based
on those assumptions used to fund such 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 a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan and
to the knowledge of the Borrower, neither the Borrower nor any Commonly
Controlled Entity would become subject to any liability under ERISA if the
Borrower 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 which liability could be
reasonably expected to result could have a Material Adverse Effect. No such
Multiemployer Plan is in Reorganization or Insolvent.
5.12 Investment Company Act; Other Regulations. The Borrower 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
Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board) which limits its ability to
incur Indebtedness.
5.13 Purpose of Loans. The proceeds of the Loans shall be used to
finance the working capital and general corporate needs of the Borrower and its
Subsidiaries, including to finance or refinance the Xxxxxxxxx Acquisition.
5.14 Environmental Matters. Except to the extent that the failure of
the following statements to be true and correct could not reasonably be expected
to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated by the
Borrower or any of its Subsidiaries (the "Properties") do not contain, and
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations which (i) constitute or constituted a violation
of, or (ii) could reasonably be expected to give rise to liability under,
any Environmental Law.
(b) The Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, in all
material respects with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated
by the Borrower or any of its Subsidiaries (the "Business") which could
reasonably be expected to materially interfere with the continued
operation of the Properties or materially impair the fair saleable value
thereof.
(c) Neither the Borrower 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 or the Business,
nor does the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened.
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(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 be expected to give rise to liability
under, any Environmental Law, 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 be
expected to give rise to liability under, any applicable Environmental
Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, 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 or
the Business.
(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 Borrower or any Subsidiary in connection
with the Properties or otherwise in connection with the Business, in
violation of or in amounts or in a manner that could reasonably be
expected to give rise to liability under Environmental Laws.
5.15 Disclosure. The statements and information contained herein and
in any of the information provided to the Administrative Agent or the Lenders in
writing (other than financial projections) in connection with this Agreement,
taken as a whole, do not contain any untrue statement of any material fact, or
omit to state a fact necessary in order to make such statements or information
not misleading in any material respect, in each case in light of the
circumstances under which such statements were made or information provided as
of the date so provided. The financial projections contained in the July 1998
Confidential Information Memorandum, furnished to the Administrative Agent and
the Lenders in writing in connection with this Agreement have been prepared in
good faith based upon assumptions which were reasonable when such projections
were made, it being acknowledged that such projections are subject to the
uncertainty inherent in all projections of future results and that there can be
no assurance that the results set forth in such projections will in fact be
realized.
5.16 Year 2000 Matters. Except as disclosed in the Borrower's
filings with the Securities and Exchange Commission, the Borrower expects that
the cost of ensuring that its computer systems are Year 2000 compliant should
not have a Material Adverse Effect and that its year 2000 remediation will be
substantially completed prior to any anticipated material impact on its
operations.
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SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Loans. This Second Amended and Restated
Credit Agreement shall become effective upon, and the agreement of each Lender
to make the initial Loan requested to be made by it is subject to, the
satisfaction on the Closing Date of the following conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have received
this Agreement, executed and delivered by a duly authorized officer of the
Borrower, with a counterpart for each Lender, and executed and delivered
by the Majority Lenders (as defined in and with respect to the Existing
Credit Agreement), including each Lender increasing any of its
Commitments.
(b) Closing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Borrower, dated the Closing Date, substantially in the form of Exhibit F,
with appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of the
Borrower.
(c) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents shall
be true and correct in all material respects on and as of the Closing Date
as if made on and as of the Closing Date.
(d) Repayment of Existing Credit Facility. All amounts (including
principal, interest and fees) due under the Existing Credit Facility shall
have been paid in accordance with the terms of the Existing Credit
Facility.
(e) Legal Opinion. The Administrative Agent shall have received,
with a counterpart for each Lender, the executed legal opinion of counsel
to the Borrower (which opinion may be delivered in part by in-house
counsel to the Borrower), covering the matters set forth in Exhibit G.
Such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(f) Approvals. All governmental and third party approvals necessary
in connection with the execution, delivery and performance of this
Agreement and the other Loan Documents shall have been obtained and be in
full force and effect.
(g) Financial Statements; Pro Forma Projected Consolidated
Capitalization. The Lenders shall have received (i) satisfactory audited
consolidated financial statements of the Borrower and its consolidated
Subsidiaries for the two most recent fiscal years ended prior to the
Closing Date as to which such financial statements are available, (ii)
satisfactory unaudited interim consolidated financial statements of the
Borrower and its consolidated Subsidiaries for each quarterly period ended
subsequent to the date of the latest financial statements delivered
pursuant to clause (i) of this
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paragraph as to which such financial statements are available and (iii) a
satisfactory pro forma projected consolidated capitalization of the
Borrower as anticipated at December 31, 1998, adjusted to give effect to
the Xxxxxxxxx Acquisition and the financing contemplated hereby.
(h) 364-Day Facility. The Closing Date under (and as defined in) the
364-Day Facility shall occur simultaneously with the Closing Date
hereunder.
6.2 Conditions to Each Loan. The agreement of each Lender to make
any Loan requested to be made by it on any date (including, without limitation,
its initial Loan) is subject to the satisfaction of the following conditions
precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower in or pursuant to the Loan Documents
(other than, in the case of any Loan made after the Closing Date, the
representations and warranties in subsections 5.2 and 5.6) shall be true
and correct in all material respects on and as of such date as if made on
and as of such date and, in the case of any Loan made on the Closing Date,
after giving effect to the consummation of the Xxxxxxxxx Acquisition.
(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 Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments (or any
of them) remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall and (except in the case of delivery of financial information, reports and
notices) shall cause each of its Subsidiaries to:
7.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 110 days after the
end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related consolidated statements of operations and
stockholders' 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 Ernst & Young LLP
or other independent certified public accountants of nationally recognized
standing; and
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(b) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of operations for such
quarter and the portion of the fiscal year through the end of such quarter
and of cash flows of the Borrower 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 (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall 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); provided, that it is hereby acknowledged that the
quarterly financial statements delivered pursuant to paragraph (b) above may not
include all of the information and footnotes required by GAAP for complete
annual financial statements.
7.2 Certificates; Other Information. Furnish to the Administrative
Agent with sufficient copies for the Lenders:
(a) concurrently with the delivery of the financial statements
referred to in subsections 7.1(a) and 7.1(b), a certificate of a
Responsible Officer stating that such Officer has obtained no knowledge of
any Default or Event of Default that has occurred and is continuing except
as specified in such certificate, and including calculations demonstrating
compliance with subsection 8.1;
(b) within ten days after the same are sent, copies of all financial
statements and reports which the Borrower sends to its stockholders, and
within five days after the same are filed, copies of all financial
statements and reports which the Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority, and promptly after the same are issued, copies of
all press releases issued by the Borrower; and
(c) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except 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 Borrower or its Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as conducted by it on the Signing
Date and
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preserve, renew and keep in full force and effect its corporate existence and
(except as could not in the aggregate be reasonably expected to have a Material
Adverse Effect) 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 8.3; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, be reasonably expected
to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. Keep all property necessary
in its business in good working order and condition except to the extent that
failure to do so could not, in the aggregate, be reasonably expected to have a
Material Adverse Effect; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are adequate for conducting its business; and furnish to
each Lender, upon written request, full information as to the insurance carried.
7.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Borrower and its
Subsidiaries with officers and employees of the Borrower and its Subsidiaries
and with its independent certified public accountants.
7.7 Notices. Promptly give notice to the Administrative Agent and
each Lender 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 Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time involving the
Borrower or any of its Subsidiaries, which in either case, could
reasonably be expected to have a Material Adverse Effect; and
(c) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence or expected occurrence of any Reportable Event with respect
to any Plan, a failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a 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 Borrower or any Commonly Controlled
Entity or any Multiemployer Plan with respect to the withdrawal from, or
the terminating, Reorganization or Insolvency of, any Plan, other than the
termination of any Single Employer Plan pursuant to Section 4041(b) of
ERISA where, in connection with any of the foregoing, the amount of
liability the Borrower or any Commonly Controlled Entity could reasonably
be expected to incur would be material.
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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 Borrower proposes to take with respect thereto.
7.8 Consummation of Xxxxxxxxx Acquisition. Consummate, in accordance
with applicable law, except to the extent that the failure to comply with
applicable law could not be reasonably expected to have a Material Adverse
Effect on the Borrower and its Subsidiaries taken as a whole, the Xxxxxxxxx
Acquisition within 5 Business Days of the Closing Date.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments (or any
of them) remain in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Loan Document, the Borrower
shall not, and (except with respect to subsection 8.1) shall not permit any of
its Subsidiaries to, directly or indirectly:
8.1 Funded Debt Ratio. Permit the ratio of (i) Consolidated Funded
Debt to (ii) the sum of (A) Consolidated Net Worth and (B) Consolidated Funded
Debt, to be at any time greater than (x) .70 to 1.0, through the earlier date
referred to in clause (y) or (y) after the earlier of (1) the date which is six
months after the Closing Date and (2) the date of issuance by the Borrower of
Capital Stock for cash consideration in excess of $500,000,000, .60 to 1.0.
8.2 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 Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(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;
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(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
Borrower or such Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule 8.2,
provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured thereby
is not increased;
(g) Liens securing Indebtedness of the Borrower and its Subsidiaries
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 and (iii) the amount of Indebtedness secured thereby is not
increased;
(h) Liens on the property or assets of a corporation which becomes a
Subsidiary after the date hereof, provided that (i) such Liens existed at
the time such corporation became a 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 Subsidiary, and (iii) the amount of Indebtedness secured thereby
is not increased;
(i) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Borrower and all Subsidiaries)
$100,000,000 in aggregate amount at any time outstanding.
8.3 Limitation 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 Borrower may be merged or consolidated
with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any one or more
wholly owned Subsidiaries of the Borrower (provided that the wholly owned
Subsidiary or Subsidiaries shall be the continuing or surviving
corporation);
(b) the Borrower or any wholly owned Subsidiary of the Borrower may
sell, lease, transfer or otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to the Borrower or any other
wholly owned Subsidiary, and, so long as no Default or Event of Default
shall have occurred and be continuing or would occur as a result thereof,
the Borrower or any Subsidiary of the Borrower may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to any non-wholly owned Subsidiary of the
Borrower for fair market value;
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(c) any non-wholly owned Subsidiary of the Borrower may sell, lease,
transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Borrower or any wholly owned Subsidiary
of the Borrower for fair market value or may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise) to any other non-wholly owned Subsidiary of the Borrower;
and
(d) the Borrower or any Subsidiary of the Borrower may be merged or
consolidated with or into another Person; provided that the Borrower or
such Subsidiary shall be the continuing or surviving corporation and no
Default or Event of Default shall have occurred and be continuing or would
occur as a result thereof (and, in the case of any such transaction
involving a Subsidiary, such Subsidiary shall continue to be a Subsidiary
or the Borrower shall have received fair market value therefor as
determined by the Board of Directors of the Borrower); and provided
further that the Borrower may not be merged or consolidated with or into
any Subsidiary.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or the Borrower shall
fail to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement shall prove to have
been incorrect in any material respect on or as of the date made or deemed
made; or
(c) (i) The Borrower shall default in the observance or performance
of any covenant contained in subsection 7.8 or in Section 8; (ii) the
Borrower shall default in the observance or performance of any agreement
contained in Section 11; or (iii) the Borrower shall default in the
observance or performance of any other agreement contained in this
Agreement (other than as provided above in this Section), and such default
described in this clause (iii) shall continue unremedied for a period of
30 days; or
(d) The Borrower 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, 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
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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; provided,
however, that no Default or Event of Default shall exist under this
paragraph unless the aggregate amount of Indebtedness and/or Guarantee
Obligations in respect of which any default or other event or condition
referred to in this paragraph shall have occurred shall be equal to at
least $100,000,000; or
(e) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to it
or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or the Borrower or any of its Subsidiaries
shall make a general assignment for the benefit of its creditors; or (ii)
there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Borrower or any of its Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Borrower or any
of its Subsidiaries shall take any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) the Borrower or any of its
Subsidiaries shall generally not or shall admit in writing its inability
to, pay its debts as they become due; or
(f) (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 or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (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 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 Borrower or any Commonly Controlled Entity shall incur
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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 reasonably be expected to
have a Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a liability
(not paid or in excess of the amount recoverable by insurance) of
$100,000,000 (net of any related tax benefit) 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
(h) (i) Any Person 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 30% or more of any outstanding class
of Capital Stock having ordinary voting power in the election of directors
of the Borrower or (B) shall obtain the power (whether or not exercised)
to elect a majority of the Borrower's directors or (ii) the Board of
Directors of the Borrower shall not consist of a majority of Continuing
Directors; "Continuing Directors" shall mean the directors of the Borrower
on the Closing Date and each other director, if such other director's
nomination for election to the Board of Directors of the Borrower is
recommended by a majority of the then Continuing Directors;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement 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 10. THE ADMINISTRATIVE AGENT; THE ARRANGER, THE BOOK
MANAGER AND THE SYNDICATION AGENTS
10.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each Lender irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf
under the provisions of this Agreement and the
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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 fiduciary
relationship with any Lender, 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.
10.2 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.
10.3 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 Lenders for
any recitals, statements, representations or warranties made by the Borrower 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 other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
10.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
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 Borrower),
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 Majority Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of
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the Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
10.5 Notice of Default. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or
the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall be reasonably
directed by the Majority Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of
the Borrower, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
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 Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Revolving Credit Commitment Percentages in
effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or
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disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of, the Commitments, 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 Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements which are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this subsection shall survive the payment of the Loans and all other amounts
payable hereunder.
10.8 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 Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Majority Lenders shall appoint from among
the Lenders a successor agent for the Lenders, which successor agent (provided
that it shall have been approved by the Borrower), shall succeed to the rights,
powers and duties of the Administrative Agent hereunder. Effective upon such
appointment and approval, the term "Administrative Agent" shall mean such
successor agent, 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 10
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.
10.10 The Arranger, the Book Manager and the Syndication Agents.
None of the Arranger, the Book Manager or the Syndication Agents shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of the Arranger, the Book Manager or the Syndication Agents
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on the Arranger,
the Book Manager or the Syndication Agents in deciding to enter into this
Agreement or in taking or not taking any action hereunder.
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SECTION 11. GUARANTEE
11.1 Guarantee. (a) The Borrower hereby unconditionally and
irrevocably guarantees to the Administrative Agent, for the ratable benefit of
the Administrative Agent and the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Foreign Subsidiary Borrowers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) No payment or payments made by the Borrower or any other Person
or received or collected by the Administrative Agent or any Lender from the
Borrower or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application, at any time or from time to time, in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of the Borrower hereunder which shall,
notwithstanding any such payment or payments, remain liable hereunder for the
Obligations until the Obligations are paid in full and the Commitments are
terminated.
(c) The Borrower agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any Lender on
account of its liability hereunder, it will notify the Administrative Agent and
such Lender in writing that such payment is made under this Section for such
purpose.
11.2 No Subrogation. Notwithstanding any payment or payments made by
the Borrower hereunder, or any set-off or application of funds of the Borrower
by the Administrative Agent or any Lender, the Borrower shall not be entitled to
be subrogated to any of the rights of the Administrative Agent or any Lender
against the Foreign Subsidiary Borrowers or against any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Obligations, nor shall the Borrower seek or be entitled to
seek any contribution or reimbursement from the Foreign Subsidiary Borrowers in
respect of payments made by the Borrower hereunder, until all amounts owing to
the Administrative Agent and the Local Currency Lenders by the Foreign
Subsidiary Borrowers on account of the Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to the Borrower on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full, such amount shall be held by the Borrower in trust
for the Administrative Agent and the Lenders, segregated from other funds of the
Borrower, and shall, forthwith upon receipt by the Borrower, be turned over to
the Administrative Agent in the exact form received by the Borrower (duly
indorsed by the Borrower to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
Administrative Agent may determine. The provisions of this paragraph shall
continue to be effective after the termination of this Agreement, the payment in
full of the Obligations and the termination of the Commitments.
11.3 Amendments, etc. with respect to the Obligations; Waiver of
Rights. The Borrower shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Borrower, and without notice to or
further assent by the Borrower, any demand for payment of any of the Obligations
made by the Administrative Agent or any
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Lender may be rescinded by the Administrative Agent or such Lender, and any of
the Obligations continued, and the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee
therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and any Loan Documents and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, in accordance with the provisions thereof as the
Administrative Agent (or the requisite Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. None of the Administrative Agent or any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for this Agreement or any property subject
thereto. When making any demand hereunder against the Borrower, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Foreign Subsidiary Borrowers or any other
guarantor, and any failure by the Administrative Agent or any Lender to make any
such demand or to collect any payments from a Foreign Subsidiary Borrower or any
such other guarantor or any release of a Foreign Subsidiary Borrower or such
other guarantor shall not relieve the Borrower of its obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of the Administrative Agent or any Lender
against the Borrower. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
11.4 Guarantee Absolute and Unconditional. The Borrower waives any
and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Agreement or acceptance of this Agreement; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Agreement; and all dealings between the Foreign Subsidiary Borrowers and the
Borrower, on the one hand, and the Administrative Agent and the Lenders, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Agreement. The Borrower waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon the
Foreign Subsidiary Borrowers and the Borrower with respect to the Obligations.
This Section 11 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity, regularity or
enforceability of this Agreement, any other Loan Document, any of the
Obligations or any other collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Foreign Subsidiary Borrowers against the
Administrative Agent or any Lender, or (c) any other circumstance whatsoever
(with or without notice to or knowledge of the Foreign Subsidiary Borrowers or
the Borrower) which constitutes, or might be construed to constitute, an
equitable or legal discharge of the Foreign Subsidiary Borrowers for the
Obligations, or of the Borrower under this Section 11, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against the
Borrower, the Administrative Agent and any Lender may, but shall be under no
obligation
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to, pursue such rights and remedies as it may have against the Foreign
Subsidiary Borrowers or any other Person or against any collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any Lender to pursue such other
rights or remedies or to collect any payments from the Borrower or any such
other Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of the Foreign Subsidiary
Borrowers or any such other Person or of any such collateral security, guarantee
or right of offset, shall not relieve the Borrower of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Administrative Agent or any Lender
against the Borrower. This Section 11 shall remain in full force and effect and
be binding in accordance with and to the extent of its terms upon the Borrower
and its successors and assigns, and shall inure to the benefit of the
Administrative Agent and the Lenders, and their respective successors,
indorsees, transferees and assigns, until all the Obligations and the
obligations of the Borrower under this Agreement shall have been satisfied by
payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of this Agreement the Foreign Subsidiary
Borrowers may be free from any Obligations.
11.5 Reinstatement. This Section 11 shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, the Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
11.6 Payments. The Borrower hereby agrees that all payments required
to be made by it hereunder will be made to the Administrative Agent without
set-off or counterclaim in accordance with the terms of the Obligations,
including, without limitation, in the currency in which payment is due.
11.7 "Lenders". For all purposes of this Section 11, the term
"Lenders" shall be deemed to include Local Currency Lenders.
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. (a) Except as provided in paragraphs
(b) and (c) of this subsection 12.1, neither this Agreement nor any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Majority Lenders may, or, with the written consent of the Majority Lenders, the
Administrative Agent may, from time to time, (a) enter into with the Borrower
written amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders or of
the Borrower hereunder or thereunder or (b) waive, on such terms and conditions
as the Majority Lenders or the Administrative Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of
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Default and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (i) reduce the amount or extend the
scheduled date of maturity of any Loan, or reduce the stated rate or amount of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the amount or extend the expiration date of any
Lender's Multicurrency Commitment or Revolving Credit Commitment, in each case
without the consent of each Lender affected thereby, or (ii) amend, modify or
waive any provision of this subsection or reduce the percentages specified in
the definitions, of Majority Lenders or Majority Multicurrency Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents or release the
Borrower from the guarantee set forth in Section 11, in each case without the
written consent of all the Lenders, or (iii) amend, modify or waive any
provision of Section 10 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 Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former positions 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; no such waiver shall extend to any subsequent or other
Default or Event of Default or impair any right consequent thereon.
(b) In addition to amendments effected pursuant to the foregoing
paragraph (a), (i) Schedule II may be amended to change administrative
information contained therein with the approval of the Majority Multicurrency
Lenders, upon execution and delivery by the Borrower and the Administrative
Agent of a written amendment providing for such amendment and (ii) additional
freely-convertible eurocurrencies may be added as Available Foreign Currencies,
upon execution and delivery by the Borrower, the Administrative Agent and the
Majority Multicurrency Lenders of an amendment providing for such addition.
(c) The Administrative Agent shall give prompt written notice to
each Lender of any amendment effected pursuant to subsection 12.1(b).
(d) Notwithstanding the provisions of this subsection 12.1, any
Local Currency Facility may be amended, supplemented or otherwise modified in
accordance with its terms so long as after giving effect thereto either (i) such
Local Currency Facility ceases to be an "Local Currency Facility" and the
Borrower so notifies the Administrative Agent or (ii) the Local Currency
Facility continues to meet the requirements of a Local Currency Facility set
forth herein.
12.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower and the Administrative Agent, and as set
forth in Schedule I in the case
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of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower: Boston Scientific Corporation
Xxx Xxxxxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Best
Chief Financial Officer and
Senior Vice President,
Finance & Administration
Fax: 000-000-0000
with a copy to:
General Counsel's Office
Fax: 000-000-0000
The Administrative Loan & Agency Services Group
Agent: One Chase Xxxxxxxxx Xxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Fax: 000-000-0000
with a copy to:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx Xxx
Fax: 000-000-0000
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to subsection 2.2, 2.4, 2.7, 2.12, 2.13, or 3.2 shall
not be effective until received.
12.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Loan Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
12.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or
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statement delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans hereunder.
12.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents 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 Lender 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 other Loan Documents and any such other
documents, including, without limitation, the fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, provided, that in connection with
any workout or restructuring, the Borrower shall pay the fees and disbursements
of (i) one counsel for the Administrative Agent and the Lenders pursuant to this
clause (b) and (ii) one counsel to the Administrative Agent and the Lenders in
the jurisdiction of each Foreign Subsidiary Borrower pursuant to this clause
(b), (c) to pay, indemnify, and hold each Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
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 other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender 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 other Loan Documents including, without limitation, any
of the foregoing relating to the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or any of the Properties (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided that the Borrower
shall have no obligation hereunder to the Administrative Agent or any Lender
with respect to indemnified liabilities arising from the gross negligence or
willful misconduct of the Administrative Agent or any such Lender. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
12.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent and their respective successors and
assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or
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other entities ("Participants") participating interests in any Loan owing to
such Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Loan Documents, and the Borrower and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. No Lender shall be entitled to create in favor of any
Participant, in the participation agreement pursuant to which such Participant's
participating interest shall be created or otherwise, any right to vote on,
consent to or approve any matter relating to this Agreement or any other Loan
Document except for those specified in clauses (i) and (ii) of the proviso to
subsection 12.1(a). The Borrower agrees that if amounts outstanding under this
Agreement are due or unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each Participant
shall, to the maximum extent permitted by applicable law, be deemed to have the
right of setoff in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
12.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 3.9, 3.10 and
3.11 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in the case
of subsection 3.10, such Participant shall have complied with the requirements
of said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to any Lender or any Affiliate thereof of comparable
credit-worthiness or, with the consent of the Borrower (unless a Default or an
Event of Default shall have occurred and be continuing) and the Administrative
Agent (which in each case shall not be unreasonably withheld), to an additional
bank, financial institution, or other entity (an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Loan Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and
the Administrative Agent) and delivered to the Administrative Agent for its
acceptance and recording in the Register, provided that, in the case of any such
assignment to an additional bank, financial institution or other entity, the sum
of the aggregate principal amount of the Loans and the aggregate amount of the
unused Revolving Credit Commitment being assigned shall be not less than
$10,000,000 and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal amount
of the Revolving Credit Loans and the aggregate amount of
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the unused Revolving Credit Commitment remaining with the assigning Lender shall
be not less than $15,000,000 (or such lesser amount as may be agreed to by the
Borrower and the Administrative Agent). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with Commitments as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto). Each
assignment by a Lender of any portion of its Revolving Credit Commitment shall
be accompanied by assignment by such Lender to the same Assignee of the same
percentage of such Lender's Multicurrency Commitment.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in subsection
12.2 a copy of each Assignment and Acceptance delivered to it and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amount of the Loans owing to, each Lender
from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Administrative Agent and the
Lenders may (and, in the case of any Loan or other obligation hereunder not
evidenced by a Note, shall) treat each Person whose name is recorded in the
Register as the owner of a Loan or other obligation hereunder as the owner
thereof for all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any Loan or other
obligation hereunder not evidenced by a Note shall be effective only upon
appropriate entries with respect thereto being made in the Register. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an Affiliate thereof, by the Borrower (if required) and the
Administrative Agent) together with payment to the Administrative Agent of a
registration and processing fee of $3500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders and
the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee,
subject to the provisions of subsection 12.15, any and all financial information
in such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of such and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans and Notes relate only to
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absolute assignments and that such provisions do not prohibit assignments
creating security interests, including, without limitation, any pledge or
assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
12.7 Adjustments; Set-off. (a) If any Lender (a "benefitted Lender")
shall at any time receive any payment of all or part of its Loans (or any
participation therein arising pursuant to subsection 12.16) then due and owing,
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 Section 9(e), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans (or any participation therein arising
pursuant to subsection 12.16) then due and owing, or interest thereon, such
benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (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 Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
12.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission), 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 Borrower and the
Administrative Agent.
12.9 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.
12.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Administrative Agent and the
Lenders with respect to the
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subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Administrative Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
12.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12.12 Submission To Jurisdiction; Waivers. The Borrower 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 to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the Courts
of the State of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from any thereof;
(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
Borrower at its address set forth in subsection 12.2 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.
12.13 Acknowledgements. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between
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Administrative Agent and Lenders, on one hand, and the Borrower, on the
other hand, in connection herewith or therewith is solely that of debtor
and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among the Borrower and the Lenders.
12.14 European Economic and Monetary Union. (a) Definitions. In this
subsection 12.14 and in each other provision of this Agreement to which
reference is made in this subsection 12.14 expressly or impliedly, the following
terms have the meanings given to them in this subsection 12.14:
"commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU (at the date of this Agreement
expected to be January 1, 1999) or the date on which circumstances arise
which (in the opinion of the Administrative Agent) have substantially the
same effect and result in substantially the same consequences as
commencement of the third stage of EMU as contemplated by the Treaty on
European Union.
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU legislation" means legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the euro or otherwise), being in part
the implementation of the third stage of EMU;
"euro" means the single currency of participating member states
of the European Union;
"euro unit" means the currency unit of the euro;
"national currency unit" means the unit of currency (other than a
euro unit) of a participating member state;
"participating member state" means each state so described in any
EMU legislation; and
"Treaty on European Union" means the Treaty of Rome of March 25,
1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force
on November 1, 1993), as amended from time to time.
(b) Effectiveness of Provisions. The provisions of paragraphs (c) to
(j) below (inclusive) shall be effective at and from the commencement of the
third stage of EMU, provided, that if and to the extent that any such provision
relates to any state (or the currency of such state) that is not a participating
member state on the commencement of the
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third stage of EMU, such provision shall become effective in relation to such
state (and the currency of such state) at and from the date on which such state
becomes a participating member state.
(c) Redenomination and Alternative Currencies. Each obligation under
this Agreement of a party to this Agreement which has been denominated in the
national currency unit of a participating member state shall be redenominated
into the euro unit in accordance with EMU legislation, provided, that if and to
the extent that any EMU legislation provides that following the commencement of
the third stage of EMU an amount denominated either in the euro or in the
national currency unit of a participating member state and payable within that
participating member state by crediting an account of the creditor can be paid
by the debtor either in the euro unit or in the national currency unit, each
party to this Agreement shall be entitled to pay or repay any such amount either
in the euro unit or in such national currency unit.
(d) Loans. Any Loan in the currency of a participating member state
shall be made in the euro unit.
(e) Business Days. With respect to any amount denominated or to be
denominated in the euro or a national currency unit, any reference to a
"Business Day" shall be construed as a reference to a day (other than a Saturday
or Sunday) on which banks are generally open for business in
(i) London and New York City and
(ii) Frankfurt am Main, Germany (or such principal financial center
or centers in such participating member state or states as the
Administrative Agent may from time to time nominate for this
purpose).
(f) Payments to the Administrative Agent. Subsections 2.11 and 3.7
shall be construed so that, in relation to the payment of any amount of euro
units or national currency units, such amount shall be made available to the
Administrative Agent in immediately available, freely transferable, cleared
funds to such account with such bank in Frankfurt am Main, Germany (or such
other principal financial center in such participating member state as the
Administrative Agent may from time to time nominate for this purpose) as the
Administrative Agent shall from time to time nominate for this purpose.
(g) Payments by the Administrative Agent to the Lenders. Any amount
payable by the Administrative Agent to the Lenders under this Agreement in the
currency of a participating member state shall be paid in the euro unit.
(h) Payments by the Administrative Agent Generally. With respect to
the payment of any amount denominated in the euro or in a national currency
unit, the Administrative Agent shall not be liable to the Borrower or any of the
Lenders in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount required by this Agreement to be
paid by the Administrative Agent if the Administrative Agent shall have taken
all relevant steps to achieve, on the date required by
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this Agreement, the payment of such amount in immediately available, freely
transferable, cleared funds (in the euro unit or, as the case may be, in a
national currency unit) to the account with the bank in the principal financial
center in the participating member state which the Borrower or, as the case may
be, any Lender shall have specified for such purpose. In this paragraph (h),
"all relevant steps" means all such steps as may be prescribed from time to time
by the regulations or operating procedures or such clearing or settlement system
as the Administrative Agent may from time to time determine for the purpose of
clearing or settling payments of the euro.
(i) Basis of Accrual. If the basis of accrual of interest or fees
expressed in this Agreement with respect to the currency of any state that
becomes a participating state shall be inconsistent with any convention or
practice in the London Interbank Market or, as the case may be, the Paris
Interbank Market for the basis of accrual of interest or fees in respect of the
euro, such convention or practice shall replace such expressed basis effective
as of and from the date on which such state becomes a participating member
state; provided, that if any Loan in the currency of such state is outstanding
immediately prior to such date, such replacement shall take effect, with respect
to such Loan, at the end of the then current Interest Period.
(j) Rounding and Other Consequential Changes. Without prejudice and
in addition to any method of conversion or rounding prescribed by any EMU
legislation and without prejudice to the respective liabilities for indebtedness
of the Borrower to the Lenders and the Lenders to the Borrower under or pursuant
to this Agreement:
(i) each reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a national currency unit to be paid to or by
the Administrative Agent shall be replaced by a reference to such
reasonably comparable and convenient amount (or an integral multiple
thereof) in the euro unit as the Administrative Agent may from time to
time specify; and
(ii) except as expressly provided in this subsection 12.14, each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to
be necessary or appropriate to reflect the introduction of or changeover
to the euro in participating member states.
(k) Increased Costs. The Borrower shall from time to time, at the
request of the Administrative Agent, pay to the Administrative Agent for the
account of each Lender the amount of any cost or increased cost incurred by, or
of any reduction in any amount payable to or in the effective return on its
capital to, or of interest or other return foregone by, such Lender or any
holding company of such Lender as a result of the introduction of, changeover to
or operation of the euro in any participating member state to the extent such
introduction, changeover or operation relates to such Lender's obligations
hereunder; provided that the Borrower shall not be required to pay to any Lender
any amounts under this paragraph for any period prior to the date on which such
Lender gives notice to the Borrower that such amounts are payable unless such
Lender gives notice within 180 days after it becomes aware or should have been
aware of the event giving rise to such payment obligation.
77
72
12.15 Confidentiality. Each Lender agrees to keep confidential any
written or oral information (a) provided to it by or on behalf of the Borrower
or any of its Subsidiaries pursuant to or in connection with this Agreement or
(b) obtained by such Lender based on a review of the books and records of the
Borrower or any of its Subsidiaries; provided that nothing herein shall prevent
any Lender from disclosing any such information (i) to the Administrative Agent
or any other Lender, (ii) to any Transferee which receives such information
having been made aware of the confidential nature thereof and having agreed to
abide by the provisions of this subsection 12.15, (iii) to its employees,
directors, agents, attorneys, accountants and other professional advisors, and
to employees and officers of its Affiliates who agree to be bound by the
provisions of this subsection 12.15 and who have a need for such information in
connection with this Agreement or other transactions or proposed transactions
with the Borrower, (iv) upon the request or demand of any Governmental Authority
having jurisdiction over such Lender, (v) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than in breach
of this Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
12.16 Loan Conversion/Participations. (a)(i) On any Conversion Date,
to the extent not otherwise prohibited by a Requirement of Law or otherwise, all
Loans (other than CAF Advances) outstanding in any currency other than Dollars
("Loans to be Converted") shall be converted into Revolving Credit Loans
denominated in Dollars (calculated on the basis of the relevant Exchange Rates
as of the Business Day immediately preceding the Conversion Date) ("Converted
Loans") and (ii) on the Conversion Date (with respect to Loans described in the
foregoing clause (i)) (A) each Lender severally, unconditionally and irrevocably
agrees that it shall purchase in Dollars a participating interest in such
Converted Loans in an amount equal to its Conversion Sharing Percentage of the
outstanding principal amount of the Converted Loans and (B) to the extent
necessary to cause the Committed Outstandings Percentage of each Lender to equal
its Revolving Credit Commitment Percentage (calculated immediately prior to the
termination or expiration of the Revolving Credit Commitments), each Lender
severally, unconditionally and irrevocably agrees that it shall purchase or sell
a participating interest in Revolving Credit Loans then outstanding. Each Lender
will immediately transfer to the Administrative Agent, in immediately available
funds, the amounts of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each Lender
from which a participating interest is being purchased in the amount(s) provided
for in the preceding sentence. All Converted Loans shall bear interest at the
rate which would otherwise be applicable to ABR Loans.
(b) If, for any reason, the Loans to be Converted may not be
converted into Dollars in the manner contemplated by paragraph (a) of this
subsection 12.16, (i) effective on such Conversion Date, each Lender severally,
unconditionally and irrevocably agrees that it shall purchase a participating
interest in such Loans to be Converted, as the case may be, in an amount equal
to its Conversion Sharing Percentage of such Loans to be Converted, and (ii)
each Lender shall purchase or sell participating interests as provided in
paragraph (a)(ii)(B) of this subsection 12.16. Each Lender will immediately
transfer to the appropriate Administrative Agent, in immediately available
funds, the amount(s) of its participation(s), and the proceeds of such
participation(s) shall be distributed by the Administrative Agent to each
relevant Lender in the amount(s) provided for in the preceding sentence.
78
73
(c) To the extent any Non-Excluded Taxes are required to be withheld
from any amounts payable by a Lender to another Lender in connection with its
participating interest in any Converted Loan, the Borrower shall be required to
pay increased amounts to the Lender receiving such payments to the same extent
they would be required under subsection 3.10 if the Borrower were making
payments directly to such Lender.
(d) Any time after the actions contemplated by paragraph (a) or (b)
of this subsection 12.16 have been taken, upon the notice of any Lender to the
Borrower the following shall occur: (i) the Borrower (through the guarantee
contained in Section 11) shall automatically be deemed to have assumed the Local
Currency Loans which are Converted Loans in which such Lender holds a
participation, and (ii) such Local Currency Loans shall be assigned by the
relevant Lender holding such Local Currency Loans or obligations to the Lender
who gave the notice requesting such assumption by the Borrower.
12.17 Judgment. (a) If for the purpose of obtaining judgment in any
court it is necessary to convert a sum due hereunder in one currency into
another currency, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency in the city in which it
normally conducts its foreign exchange operation for the first currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due from it
to any Lender hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by such Lender of any sum adjudged to be so due in the Judgment Currency
such Lender may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency; if the amount of Agreement
Currency so purchased is less than the sum originally due to such Lender in the
Agreement Currency, the Borrower agrees notwithstanding any such judgment to
indemnify such Lender against such loss, and if the amount of the Agreement
Currency so purchased exceeds the sum originally due to any Lender, such Lender
agrees to remit to the Borrower such excess.
12.18 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
79
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
BOSTON SCIENTIFIC CORPORATION
By: _________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: _________________________
Name:
Title:
CHASE SECURITIES INC.,
as Arranger and as Book Manager
By: _________________________
Name:
Title:
ABN AMRO BANK N.V.,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
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75
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
BARCLAYS BANK PLC,
as Syndication Agent and as a Lender
By: _________________________
Name:
Title:
ALLIED IRISH BANKS, P.L.C.
By: _________________________
Name:
Title:
BANCA COMMERCIALE ITALIANA
By: _________________________
Name:
Title:
BANCA MONTE DEL PASCHI DI SIENA S.P.A.
By: _________________________
Name:
Title:
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BANK OF IRELAND
By: _________________________
Name:
Title:
BANK OF NEW YORK
By: _________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: _________________________
Name:
Title:
BANK OF TOKYO-MITSUBISHI LIMITED
By: _________________________
Name:
Title:
BANKERS TRUST
By: _________________________
Name:
Title:
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77
BANQUE NATIONALE DE PARIS
By: _________________________
Name:
Title:
COMMERZBANK A.G.
By: _________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED
By: _________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: _________________________
Name:
Title:
FLEET NATIONAL BANK
By: _________________________
Name:
Title:
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78
THE FUJI BANK, LIMITED
By: _________________________
Name:
Title:
MELLON BANK, N.A.
By: _________________________
Name:
Title:
NATIONSBANK, N.A.
By: _________________________
Name:
Title:
SVENSKA HANDELSBANKEN
By: _________________________
Name:
Title:
TORONTO DOMINION BANK
By: _________________________
Name:
Title:
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USB AG
By: _________________________
Name:
Title:
U.S. BANK, N.A.
By: _________________________
Name:
Title:
The following Lenders, who are parties to
the Existing Credit Agreement and whose
signature is not required to amend the
Existing Credit Agreement, remain parties to
this Agreement
BANK BOSTON, N.A.
CORESTATES BANK, X.X.
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
THE SANWA BANK, LIMITED
85
SCHEDULE I
NAMES, ADDRESSES AND COMMITMENTS OF LENDERS
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
--------------------------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK $ 96,363,636.44 $ 9,636,363.64
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxx Xxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
ABN AMRO BANK N.V. 77,090,909.09 7,709,090.91
0 Xxxx Xxxxxx Xxxxxx,
00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
BANK OF AMERICA NATIONAL TRUST AND 34,090,909.09 3,409,090.91
SAVINGS ASSOCIATION
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
BARCLAYS BANK PLC 34,090,909.09 3,409,090.91
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
86
2
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
--------------------------------------------------------------------------------------------------
ALLIED IRISH BANKS PLC 63,454,545.45 6,345,454.55
Xxxx Xxxxxx, Xxxxxxxxxxx
Xxxxxx 0
Xxxxxxx
Attn: Xxxxxx X. Xxxxx
Telecopy: 353 1 6682508
--------------------------------------------------------------------------------------------------
BANCA COMERCIALE ITALIANA 20,454,545.45 2,045,454.55
Xxx Xxxxxxx Xxxxxx, 0xx
Xxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
BANCA MONTE DEL PASCHI 11,363,636.36 1,136,363.64
DI SIENA S.p.A.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
BANK BOSTON, N.A. 60,000,000.00 6,000,000.00
000 Xxxxxxx Xxxxxx
Mail Stop #01-09-04
Xxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
BANK OF IRELAND 11,363,636.36 1,136,363.64
Xxxxx Xxxxxx Xxxxxx
Xxxxxx 0
Xxxxxxx
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
87
3
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
--------------------------------------------------------------------------------------------------
BANK OF NEW YORK 11,363,636.36 1,136,363.64
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
THE BANK OF NOVA SCOTIA 27,272,727.27 2,727,272.73
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
BANK OF TOKYO-MITSUBISHI 63,454,545.45 6,345,454.55
0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
BANKERS TRUST 27,272,727.27 2,727,272.73
Xxx Xxxxxxx Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
BANQUE NATIONALE DE PARIS 11,363,636.36 1,136,363.64
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
88
4
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
--------------------------------------------------------------------------------------------------
COMMERZBANK A.G. 50,454,545.45 5,045,454.55
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
CORESTATES BANK, N.A. $ 43,000,000.00 4,300,000.00
0000 Xxxxxxxx Xxxxxx
XXX-0-0-00
Xxxxxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
THE DAI-ICHI KANGYO 70,272,727.27 7,027,272.73
BANK, LIMITED
Xxx Xxxxx Xxxxx Xxxxxx,
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
THE FIRST NATIONAL BANK 20,454,545.45 2,045,454.55
OF CHICAGO
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Driver
(re: Boston Scientific)
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
FLEET NATIONAL BANK 27,272,727.27 2,727,272.73
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
89
5
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
--------------------------------------------------------------------------------------------------
THE FUJI BANK, LIMITED 34,363,636.36 3,436,363.64
Xxx Xxxxx Xxxxx Xxxxxx,
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxxxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
MELLON BANK, N.A. 47,363,636.36 4,736,363.64
Xxx Xxxxxx Xxxxx, 0xx
Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
XXXXXX GUARANTY TRUST 43,000,000.00 4,300,000.00
COMPANY OF NEW YORK
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxx Xxxxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
NATIONSBANK, N.A. 27,272,727.27 2,727,272.73
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
THE SANWA BANK, LIMITED 33,000,000.00 3,300,000.00
Xxx Xxxxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
--------------------------------------------------------------------------------------------------
90
6
==================================================================================================
Lender and Address Revolving Credit Commitment Multicurrency Commitment
--------------------------------------------------------------------------------------------------
SVENSKA HANDELSBANKEN 11,363,636.36 1,136,363.64
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
TORONTO DOMINION BANK 11,363,636.36 1,136,363.64
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
U.S. BANK, N.A. 20,454,545.45 2,045,454.55
First Xxxx Xxxxx,
Xxxxxxxxxxx, XX
00000-0000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
UBS AG 11,363,636.36 1,136,363.64
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn:
Telecopy:
--------------------------------------------------------------------------------------------------
TOTAL $1,000,000,000.00 $100,000,000.00
==================================================================================================
91
SCHEDULE II
I. MULTICURRENCY LOANS
A. Notice of Multicurrency Loan Borrowing
1. Deliver to: Chase Manhattan Investment Bank Limited
9 Xxxxxx Xxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx X0 0XX
Attention: Xxxxxx Xxxxxx
Telephone No: 000-00-000-000-0000
Fax No: 000-00-000-000-0000
with a copy to:
Loan & Agency Services Group
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Fax: 000-000-0000
Telephone No.: 000-000-0000
2. Time:
Not later than 11:00 a.m., London time, four Business Days
prior to such Borrowing Date.
3. Information Required:
Currency, Amount to be borrowed, and Interest Periods.
B. Notice of Multicurrency Loan Continuation; Notice of Prepayment
1. Deliver to: Chase Manhattan Investment Bank Limited
9 Xxxxxx Xxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx X0 0XX
Attention: Xxxxxx Xxxxxx
Telephone No: 000 00 000 000 0000
Fax No: 000 00 000 000 0000
with a copy to:
Loan & Agency Services Group
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Fax: 000-000-0000
Telephone No.: 000-000-0000
92
2
2. Time:
Not later than 11:00 a.m., London time, four Business Days
prior to the date of such continuation or prepayment.
3. Information Required:
Amount to be continued or prepaid, as the case may be, and
Interest Periods.
II. NOTICE OF LOCAL CURRENCY OUTSTANDINGS
1. Deliver to: Loan & Agency Services Group
One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Fax: 000-000-0000
Telephone No.: 000-000-0000
2. Delivery time:
By close of business in New York on the date of making of each
Local Currency Loan and on the last Business Day of each month
on which the applicable Foreign Subsidiary Borrower has
outstanding any Local Currency Loans.
3. Information Required:
Name of Foreign Subsidiary Borrower, amount and currency of
outstanding Local Currency Loans.
