Exhibit 10.2
EXECUTION COPY
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364-DAY REVOLVING
CREDIT FACILITY AGREEMENT
Dated as of March 29, 2004
among
ITT INDUSTRIES,INC.
THE LENDERS NAMED HEREIN
and
JPMORGAN CHASE BANK, as Administrative Agent
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X.X. XXXXXX SECURITIES INC., as Sole Lead Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms..................................................... 1
SECTION 1.02. Terms Generally................................................... 11
SECTION 1.03. Accounting Terms; GAAP............................................ 11
ARTICLE II
The Credits
SECTION 2.01. Commitments....................................................... 11
SECTION 2.02. Loans............................................................. 12
SECTION 2.03. Standby Borrowing Procedure....................................... 13
SECTION 2.04. Conversion and Continuation of Standby Loans...................... 13
SECTION 2.05. Fees.............................................................. 14
SECTION 2.06. Repayment of Loans; Evidence of Debt.............................. 15
SECTION 2.07. Interest on Loans................................................. 16
SECTION 2.08. Default Interest.................................................. 16
SECTION 2.09. Alternate Rate of Interest........................................ 16
SECTION 2.10. Termination and, Reduction of Commitments......................... 17
SECTION 2.1l. Prepayment........................................................ 17
SECTION 2.12. Reserve Requirements; Change in Circumstances..................... 18
SECTION 2.13. Change in Legality................................................ 19
SECTION 2.14. Indemnity......................................................... 20
SECTION 2.15. Pro Rata Treatment................................................ 20
SECTION 2.16. Sharing of Setoffs................................................ 21
SECTION 2.17. Payments.......................................................... 21
SECTION 2.18. Taxes............................................................. 21
SECTION 2.19. Duty to Mitigate; Assignment of Commitments Under Certain
Circumstances.................................................. 24
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers.............................................. 25
SECTION 3.02. Authorization..................................................... 25
SECTION 3.03. Enforceability.................................................... 26
SECTION 3.04. Governmental Approvals............................................ 26
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SECTION 3.05. Financial Statements.............................................. 26
SECTION 3.06. Litigation; Compliance with Laws.................................. 26
SECTION 3.07. Federal Reserve Regulations....................................... 27
SECTION 3.08. Investment Company Act; Public Utility Holding Company Act........ 27
SECTION 3.09. Use of Proceeds................................................... 27
SECTION 3.10. Full Disclosure; No Material Misstatements........................ 27
SECTION 3.1l. Taxes............................................................. 27
SECTION 3.12. Employee Pension Benefit Plans.................................... 27
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Extensions of Credit.......................................... 28
SECTION 4.02. Effective Date.................................................... 28
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary...................... 29
ARTICLE V
Covenants
SECTION 5.01. Existence......................................................... 29
SECTION 5.02. Business and Properties........................................... 29
SECTION 5.03. Financial Statements, Reports, etc................................ 30
SECTION 5.04. Insurance......................................................... 31
SECTION 5.05. Obligations and Taxes............................................. 31
SECTION 5.06. Litigation and Other Notices...................................... 31
SECTION 5.07. Maintaining Records; Access to Properties and Inspections......... 31
SECTION 5.08. Use of Proceeds................................................... 31
SECTION 5.09. Consolidations, Mergers, and Sales of Assets...................... 32
SECTION 5.10. Limitations on Liens.............................................. 32
SECTION 5.11. Limitations on Sale and Leaseback Transactions.................... 34
SECTION 5.12. Consolidated EBITDA to Consolidated Interest Expense.............. 35
ARTICLE VI
Events of Default
ARTICLE VII
Guarantee
ARTICLE VIII
The Administrative Agent
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ARTICLE IX
Miscellaneous
SECTION 9.01. Notices........................................................... 41
SECTION 9.02. Survival of Agreement............................................. 42
SECTION 9.03. Binding Effect.................................................... 42
SECTION 9.04. Successors and Assigns............................................ 42
SECTION 9.05. Expenses; Indemnity............................................... 45
SECTION 9.06. APPLICABLE LAW.................................................... 45
SECTION 9.07. Waivers; Amendment................................................ 45
SECTION 9.08. Entire Agreement.................................................. 46
SECTION 9.09. Severability...................................................... 46
SECTION 9.10. Counterparts...................................................... 47
SECTION 9.1l. Headings.......................................................... 47
SECTION 9.12. Right of Setoff................................................... 47
SECTION 9.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS....................... 47
SECTION 9.14. WAIVER OF JURY TRIAL.............................................. 48
SECTION 9.15. Addition of Borrowing Subsidiaries................................ 48
EXHIBITS AND SCHEDULES
Exhibit A Form of Standby Borrowing Request
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel for ITT Industries, Inc.
Exhibit D Form of Borrowing Subsidiary Agreement
Schedule 2.01 Commitments
Schedule 5.10 Existing Liens
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364-DAY REVOLVING CREDIT FACILITY AGREEMENT (as it may
be amended, supplemented or otherwise modified, the
"Agreement") dated as of March 29, 2004, among ITT INDUSTRIES,
INC., an Indiana corporation (the "Company"), each Borrowing
Subsidiary party hereto, the lenders listed in Schedule 2.01
(together with their permitted assigns, the "Lenders"),
JPMORGAN CHASE BANK, a New York State banking organization, as
administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
The Lenders have been requested to extend credit to the Borrowers
(such term and each other capitalized term used but not otherwise defined herein
having the meaning assigned to it in Article I) to enable them to borrow on a
standby revolving credit basis on and after the date hereof and at any time and
from time to time prior to the Maturity Date a principal amount not in excess of
$400,000,000 at any time outstanding. The proceeds of such borrowings are to be
used for general corporate purposes (including, without limitation, commercial
paper backup). The Lenders are willing to extend credit on the terms and subject
to the conditions herein set forth.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Standby Loan .
"ABR Standby Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Administrative Fees" shall have the meaning assigned to such term
in Section 2.05(b).
"Administrative Questionnaire"shall mean an administrative
questionnaire in a form supplied by the Administrative Agent.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly or indirectly controls or is controlled by
or is under common control with the person specified.
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"Aggregate Credit Exposure" shall mean the aggregate amount of the
Lenders' Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect at its principal office
in New York City; each change in the Prime Rate shall be effective on the date
such change is publicly announced as effective. "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as released on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so released for any
day which is a Business Day, the arithmetic average (rounded upwards to the next
1/100th of 1%), as determined by the Administrative Agent, of the quotations for
the day of such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it. If for any reason
the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the Alternate Base Rate shall be determined without regard to
clause (b) of the first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall
be effective on the effective date of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Percentage" shall mean on any date, with respect to
Eurocurrency Loans, a rate per annum equal to 0.40%.
"Applicable Share" of any Lender at any time shall mean the
percentage of the Total Commitment represented by such Lender's Commitment. If
the Commitments shall be terminated pursuant to Article VI, the Applicable
Shares of the Lenders shall, subject only to assignments pursuant to Section
9.04, be based upon the Commitments in effect immediately prior to such
termination.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee in the form of Exhibit B.
"Available Commitment" shall mean, as to any Lender at any time, an
amount equal to such Lender's Commitment at such time.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
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"Board of Directors" shall mean the Board of Directors of a Borrower
or any duly authorized committee thereof.
"Borrower" shall mean the Company or any Borrowing Subsidiary.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Date" shall mean any date on which a Borrowing is made
hereunder.
"Borrowing Subsidiary" shall mean any Subsidiary which shall have
executed and delivered to the Administrative Agent for distribution to each
Lender a Borrowing Subsidiary Agreement.
"Borrowing Subsidiary Agreement" shall mean an agreement, in the
form of Exhibit D hereto, duly executed by the Company and a Subsidiary.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which banks are
open for business in New York City; provided, however, that, when used in
connection with a Eurocurrency Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in deposits in Dollars in the
London interbank market.
"Capitalized Lease-Back Obligation" shall mean with respect to a
Principal Property, at any date as of which the same is to be determined, the
total net rental obligations of the Company or a Restricted Subsidiary under a
lease of such Principal Property, entered into as part of an arrangement to
which the provisions of Section 5.11 are applicable (or would have been
applicable had such Restricted Subsidiary been a Restricted Subsidiary at the
time it entered into such lease), discounted to the date of computation at the
rate of interest per annum implicit in the lease (determined in accordance with
GAAP). The amount of the net rental obligation for any calendar year under any
lease shall be the sum of the rental and other payments required to be paid in
such calendar year by the lessee thereunder, not including, however, any amounts
required to be paid by such lessee (whether or not therein designated as rental
or additional rental) on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group of persons shall have acquired beneficial ownership of more than
30% of the outstanding Voting Shares of the Company (within the meaning of
Section 13(d) or 14(d) of the Exchange Act and the applicable rules and
regulations thereunder), or (b) during any period of 12 consecutive months,
commencing after the Effective Date, individuals who on the first day of such
period were directors of the Company (together with any replacement or
additional directors who were nominated or elected by a majority of directors
then in office) cease to constitute a majority of the Board of Directors of the
Company.
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"Code" shall mean the Internal Revenue Code of 1986, as the same may
be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the commitment
of such Lender hereunder as set forth as of the Effective Date in Schedule 2.01
under the heading "Commitment" or in an Assignment and Acceptance delivered by
such Lender under Section 9.04 as such Lender's Commitment may be permanently
terminated or reduced from time to time pursuant to Section 2.10 or pursuant to
one or more assignments under Section 9.04. The Commitment of each Lender shall
automatically and permanently terminate on the Maturity Date if not terminated
earlier pursuant to the terms hereof.
"Consolidated EBITDA" shall mean, for any period, (a) Consolidated
Net Income for such period, plus (b) provisions for taxes based on income during
such period, plus (c) Consolidated Interest Expense for such period, plus (d)
total depreciation expense for such period, plus (e) total amortization expense
for such period, plus (f) restructuring charges recorded during such period
minus (g) cash expenditures during such period that are applied against
restructuring charges recorded during such period or any prior period, all of
the foregoing as determined on a consolidated basis for the Company and the
Subsidiaries in accordance with GAAP; provided that there shall be excluded from
such calculation the net gains or losses associated with the sale of any asset
not in the ordinary course of business.
"Consolidated Interest Expense" shall mean, for any period, the
gross interest expense of the Company and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, net income or
loss of the Company and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Tangible Assets" shall mean the total of all
assets appearing on a consolidated balance sheet of the Company and its
Restricted Subsidiaries, prepared in accordance with GAAP (and as of a date not
more than 90 days prior to the date as of which Consolidated Net Tangible Assets
are to be determined), less the sum of the following items as shown on said
consolidated balance sheet:
(i) the book amount of all segregated intangible assets, including
such items as good will, trademarks, trademark rights, trade names, trade
name rights, copyrights, patents, patent rights and licenses and
unamortized debt discount and expense less unamortized debt premium;
(ii) all depreciation, valuation and other reserves;
(iii) current liabilities;
(iv) any minority interest in the shares of stock (other than
Preferred Stock) and surplus of Restricted Subsidiaries of the Company;
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(v) the investment of the Company and its Restricted Subsidiaries in
any Unrestricted Subsidiary of the Company;
(vi) the total indebtedness of the Company and its Restricted
Subsidiaries incurred in any manner to finance or recover the cost to the
Company or any Restricted Subsidiary of any physical property, real or
personal, which prior to or simultaneously with the creation of such
indebtedness shall have been leased by the Company or a Restricted
Subsidiary to the United States of America or a department or agency
thereof at an aggregate rental, payable during that portion of the initial
term of such lease (without giving effect to any options of renewal or
extension) which shall be unexpired at the date of the creation of such
indebtedness, sufficient (taken together with any amounts required to be
paid by the lessee to the lessor upon any termination of such lease) to
pay in full at the stated maturity date or dates thereof the principal of
and the interest on such indebtedness;
(vii) deferred income and deferred liabilities; and
(viii) other items deductible under GAAP.
"Credit Exposure" shall mean, with respect to any Lender at any
time, the aggregate principal amount at such time of all outstanding Loans of
such Lender.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Dollars" or "$" shall mean lawful money of the United States of
America.
"Effective Date" shall mean the first date on or after March 29,
2004, on which the conditions set forth in Section 4.02 are satisfied.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code, or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section 307
of ERISA; (c) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (d) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (e) the incurrence of
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any liability under Title IV of ERISA with respect to the termination of any
Plan or the withdrawal or partial withdrawal of the Company or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (f) the receipt by the Company
or any ERISA Affiliate from the PBGC or a plan administrator of any notice
relating to the intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (g) the receipt by the Company or any ERISA
Affiliate of any notice that Withdrawal Liability is being imposed or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; and (h) the
occurrence of a "prohibited transaction" with respect to which the Company or
any of its Subsidiaries is a "disqualified person" (within the meaning of
Section 4975) of the Code, or with respect t o which the Company or any such
Subsidiary could otherwise be liable.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Eurocurrency Standby Loan.
"Eurocurrency Standby Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934,as
amended.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Fair Value", when used with respect to property, shall mean the
fair value as determined in good faith by the board of directors of the Company.
"Fees" shall mean the Facility Fee,the Utilization Fee and the
Administrative Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, treasurer, associate or
assistant treasurer or director of treasury services of such corporation.
"GAAP" shall mean generally accepted accounting principles, applied
on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
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"Guaranteed Obligations" shall mean the principal of and interest on
the Loans made to, and all other obligations, monetary or otherwise of, the
Borrowing Subsidiaries under any Loan Document.
"Indebtedness" of any person shall mean all indebtedness
representing money borrowed or the deferred purchase price of property (other
than trade accounts payable) or any capitalized lease obligation, which in any
case is created, assumed, incurred or guaranteed in any manner by such
corporation or for which such corporation is responsible or liable (whether by
agreement to purchase indebtedness of, or to supply funds to or invest in,
others or otherwise).
"Interest Payment Date" shall mean (a) with respect to any Loan, the
last day of each Interest Period applicable thereto and (b) with respect to a
Eurocurrency Loan with an Interest Period of more than three months' duration,
each day that would have been an Interest Payment Date for such Loan had
successive Interest Periods of three months' duration, been applicable to such
Loan and, in addition, the date of any prepayment of each Loan or conversion of
such Loan to a Loan of a different Type.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing,
the period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1,
2, 3 or 6 months thereafter, as the Borrower may elect and (b) as to any ABR
Borrowing, the period commencing on the date of such Borrowing or on the last
day of the immediately preceding Interest Period applicable to such Borrowing,
as the case may be, and ending on the earliest of (i) the next succeeding March
31, June 30, September 30 or December 31, (ii) the Maturity Date, and (iii) the
date such Borrowing is converted to a Borrowing of a different Type in
accordance with Section 2.04 or repaid or prepaid in accordance with Section
2.06 or Section 2.11; provided, however, that if any Interest Period would end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of Eurocurrency Loans only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"LIBO Rate" shall mean, with respect to any Eurocurrency Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurocurrency Borrowing for such Interest Period shall be the rate at which
dollar deposits of
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$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any property or asset, any
mortgage, deed of trust, lien, pledge, security interest, charge or other
encumbrance on, of, or in such property or asset.
"Loan" shall mean a Standby Loan, whether made as a Eurocurrency
Loan or an ABR Loan, as permitted hereby.
"Loan Documents" shall mean this Agreement, the Borrowing Subsidiary
Agreements, and promissory notes, if any, issued pursuant to Section 9.04(i).
"Margin Regulations" shall mean Regulations T, U and X of the Board
as from time to time in effect, and all official rulings and interpretations
thereunder or thereof.
"Margin Stock" shall have the meaning given such term under
Regulation U of the Board.
"Material Adverse Effect" shall mean a materially adverse effect on
the business, assets, operations or condition, financial or otherwise, of the
Company and Subsidiaries taken as a whole.
"Maturity Date" shall mean March 28, 2005.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which the Company or any ERISA Affiliate (other
than one considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Code Section 414) is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Net Proceeds" means, with respect to any sale of debt or equity
securities, (a) the aggregate amount of cash proceeds received by any Borrower
or any Restricted Subsidiary of any Borrower from such sale minus (b) all fees
and expenses, including customary brokerage commissions, legal and investment
banking fees and other similar commissions, charges or fees, incurred in
connection with such sale.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"person" shall mean any natural person, corporation, limited
liability company, business trust, joint venture, association, company,
partnership or government, or any agency or political subdivision thereof.
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"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which any Borrower or
any ERISA Affiliate is (or, if such plans were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Preferred Stock" shall mean any capital stock entitled by its terms
to a preference (a) as to dividends or (b) upon a distribution of assets.
"Principal Property" shall mean any single manufacturing or
processing facility owned by the Company or any Restricted Subsidiary having a
gross book value in excess of the greater of (i) 5% of Consolidated Net Tangible
Assets and (ii) $40,000,000, except any such facility or portion thereof which
the board of directors of the Company by resolution declares is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing more than 50% of the Total Commitment or, for purposes
of acceleration pursuant to clause (ii) of Article VI, Lenders holding Loans
representing more than 50% of the aggregate principal amount of the Loans
outstanding.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restricted Subsidiary" shall mean any Subsidiary other than an
Unrestricted Subsidiary.
"SEC" shall mean the Securities and Exchange Commission.
"Standby Borrowing" shall mean a Borrowing consisting of
simultaneous Standby Loans from each of the Lenders.
"Standby Borrowing Request" shall mean a request made pursuant to
Section 2.03 in the form of Exhibit A.
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"Standby Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of the aggregate principal amount at such time of all
outstanding Standby Loans of such Lender.
"Standby Loans" shall mean the revolving loans made pursuant to
Section 2.03(a). Each Standby Loan shall be in Dollars and shall be a
Eurocurrency Standby Loan or an ABR Loan.
"subsidiary" shall mean, with respect to any person (the "parent"),
any corporation, association or other business entity of which securities or
other ownership interests representing more than 50% of the ordinary voting
power are, at the time as of which any determination is being made, owned or
controlled by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" shall mean a subsidiary of the Company.
"Total Commitment" shall mean, at any time, the aggregate amount of
Commitments of all the Lenders, as in effect at such time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall
include the LIBO Rate and the Alternate Base Rate.
"Unrestricted Subsidiary" shall mean (a) any Subsidiary which has
been designated an Unrestricted Subsidiary by resolution of the board of
directors of the Company (which resolution has been communicated in a notice
delivered by the Company to the Administrative Agent for distribution to the
Lenders) as an Unrestricted Subsidiary, other than any such Subsidiary as to
which such a designation has been rescinded by resolution of said board of
directors and not thereafter, or after some subsequent such rescission, restored
by resolution of said board, or (b) any Subsidiary 50% or less of the Voting
Shares of which is owned directly by the Company and/or one or more Restricted
Subsidiaries. A Subsidiary may not be designated as (or otherwise permitted to
become) an Unrestricted Subsidiary unless, immediately after such Subsidiary
becomes an Unrestricted Subsidiary, such Subsidiary would not own any capital
stock of, or hold any indebtedness of, any Restricted Subsidiary. A designation
as an Unrestricted Subsidiary may not be rescinded (or an Unrestricted
Subsidiary otherwise permitted to become a Restricted Subsidiary) unless such
Subsidiary (i) is not a party to any lease which it would have been prohibited
by this Agreement from entering into had it been a Restricted Subsidiary at the
time it entered into such lease, unless (x) such Subsidiary had not been a
Restricted Subsidiary prior to its entering into such lease, or (y) the property
subject to such lease shall be owned by the Company and/or one or more
Subsidiaries, or (z) such Subsidiary would not be prohibited by this Agreement
from entering into such lease immediately after it becomes a Restricted
Subsidiary, and
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(ii) does not have outstanding upon any of its property any mortgage, pledge or
other lien which it would be prohibited by this Agreement from creating,
suffering to be created, or assuming, immediately after it becomes a Restricted
Subsidiary.
"Utilization Fee" shall have the meaning set forth in Section
2.05(c).
"Voting Shares" shall mean, as to a particular corporation or other
person, outstanding shares of stock or other equity interests of any class of
such person entitled to vote in the election of directors, or otherwise to
participate in the direction of the management and policies, of such person,
excluding shares or interests entitled so to vote or participate only upon the
happening of some contingency.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided,
however, that for purposes of determining compliance with any covenant set forth
in Article V, such terms shall be construed in accordance with GAAP as in effect
on the date hereof applied on a basis consistent with the application used in
preparing the Company's audited financial statements referred to in Section
3.05; provided that, if the Borrower notifies the Administrative Agent that the
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith; provided further that GAAP as used herein shall be applied as in
effect immediately prior to FAS 133.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each
Lender agrees, severally and not jointly, to make Standby Loans to the
Borrowers, at any time and from time to time on and after the date hereof and
until the earlier of the Maturity Date and the termination of the Commitment of
such Lender.
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(b) Notwithstanding anything to the contrary contained in this
Agreement, in no event may Standby Loans be borrowed under this Article II if,
after giving effect thereto (and to any concurrent repayment or prepayment of
Loans), (i) the aggregate Standby Credit Exposures would exceed the Total
Commitment then in effect or (ii) the Standby Credit Exposure of any Lender
would exceed such Lender's Commitment.
Within the foregoing limits, the Borrowers may borrow, pay or prepay
and reborrow Standby Loans hereunder, on and after the Effective Date and prior
to the Maturity Date, subject to the terms, conditions and limitations set forth
herein.
SECTION 2.02. Loans. (a) Each Standby Loan shall be made as part of
a Borrowing consisting of Standby Loans made by the Lenders ratably in
accordance with their respective Available Commitments; provided, however, that
the failure of any Lender to make any Standby Loan shall not in itself relieve
any other Lender of its obligation to lend hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender
to make any Loan required to be made by such other Lender). The Loans comprising
any Borrowing shall be in an aggregate principal amount which is an integral
multiple of $5,000,000 and not less than $20,000,000 (or an aggregate principal
amount equal to the remaining balance of the Available Commitments). All Standby
Loans made pursuant to this Article II shall be denominated in Dollars.
(b) Each Standby Borrowing shall be comprised entirely of
Eurocurrency Standby Loans or ABR Loans, as the Borrower may request pursuant to
Section 2.03. Each Lender may at its option make any Eurocurrency Loan by
causing any domestic or foreign branch, agency or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement. Borrowings of more than one Type may be outstanding at the same
time. For purposes of the foregoing, Loans having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Loans.
(c) Subject to Section 2.04, each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New York,
not later than 12:00 noon, New York City time, and the Administrative Agent
shall by 2:00 p.m., New York City time, credit the amounts so received to the
account or accounts specified from time to time in one or more notices delivered
by the Company to the Administrative Agent or, if a Borrowing shall not occur on
such date because any condition precedent herein specified shall not have been
met, forthwith return the amounts so received to the respective Lenders. Standby
Loans shall be made by the Lenders pro rata in accordance with Section 2.15.
Unless the Administrative Agent shall have received notice from a Lender prior
to the date (or, in the case of ABR Borrowings, on the date) of any Borrowing
that such Lender will not make available to the Administrative Agent such
Lender's portion of such Borrowing, the Administrative Agent may assume that
such Lender has made such portion available to the Administrative Agent on the
date of such Borrowing in accordance with this paragraph (c) and the
Administrative Agent may, in
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reliance upon such assumption, make available to the Borrower on such date a
corresponding amount in the required currency. If and to the extent that such
Lender shall not have made such portion available to the Administrative Agent,
such Lender and the Borrower severally agree to repay to the Administrative
Agent forthwith on demand such corresponding amount together with interest
thereon in such currency, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable at the time to the Loans comprising such Borrowing and (ii) in the
case of such Lender, a rate determined by the Administrative Agent to represent
its cost of overnight funds. If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount shall constitute such Lender's Loan
as part of such Borrowing for purposes of this Agreement.
SECTION 2.03. Standby Borrowing Procedure. In order to request a
Standby Borrowing, a Borrower shall hand deliver or telecopy to the
Administrative Agent a duly completed Standby Borrowing Request in the form of
Exhibit A (i) in the case of a Eurocurrency Standby Loan, not later than 10:30
a.m., New York City time (or, if the Standby Borrowing request is delivered or
telecopied to the Administrative Agent in London, 9:30 a.m., London time),
three Business Days before such Borrowing, and (ii) in the case of an ABR
Borrowing, not later than 10:30 a.m., New York City time, on the day of such
Borrowing. Such notice shall be irrevocable and shall in each case specify (A)
whether the Borrowing then being requested is to be a Eurocurrency Standby Loan
or an ABR Borrowing; (B) the date of such Standby Borrowing (which shall be a
Business Day) and the amount thereof; and (C) if such Borrowing is to be a
Eurocurrency Standby Loan, the Interest Period with respect thereto, which shall
not end after the Maturity Date. If no election as to the Type of Standby
Borrowing is specified in any such notice, then the requested Standby Borrowing
shall be an ABR Borrowing. If no Interest Period with respect to any
Eurocurrency Standby Loan is specified in any such notice, then the Borrower
shall be deemed to have selected an Interest Period of one month's duration.
Notwithstanding any other provision of this Agreement to the contrary, no
Standby Borrowing shall be requested if the Interest Period with respect thereto
would end after the Maturity Date. The Administrative Agent shall promptly
advise each of the Lenders of any notice given pursuant to this Section 2.03 and
of each Lender's portion of the requested Borrowing.
SECTION 2.04. Conversion and Continuation of Standby Loans. Each
Borrower shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (i) not later than 10:30 a.m., New York City time, on the
day of the conversion, to convert all or any part of any Eurocurrency Standby
Loan into an ABR Standby Loan, and (ii) not later than 10:30 a.m., New York City
time, three Business Days prior to conversion or continuation, to convert any
ABR Standby Loan into a Eurocurrency Standby Loan or to continue any
Eurocurrency Standby Loan as a Eurocurrency Standby Loan for an additional
Interest Period, subject in each case to the following:
(a) if less than all the outstanding principal amount of any Standby
Borrowing shall be converted or continued, the aggregate principal amount
of the
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Standby Borrowing converted or continued shall be an integral multiple of
$5,000,000 and not less than $20,000,000;
(b) accrued interest on a Standby Borrowing (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;
(c) if any Eurocurrency Standby Loan is converted at a time other
than the end of the Interest Period applicable thereto, the Borrower shall
pay, upon demand, any amounts due to the Lenders pursuant to Section 2.14;
(d) any portion of a Standby Borrowing maturing or required to be
repaid in less than one month may not be converted into or continued as a
Eurocurrency Standby Loan;
(e) any portion of a Eurocurrency Standby Loan which cannot be
continued as a Eurocurrency Standby Loan by reason of clause (d) above
shall be automatically converted at the end of the Interest Period in
effect for such Eurocurrency Standby Loan into an ABR Borrowing;
(f) no Interest Period may be selected for any Eurocurrency Standby
Borrowing that would end later than the Maturity Date; and
(g) at any time when there shall have occurred and be continuing any
Default or Event of Default, no Standby Loan may be converted into or
continued as a Eurocurrency Standby Loan.
Each notice pursuant to this Section 2.04 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Standby Borrowing to be converted or continued, (ii) whether such Standby
Borrowing is to be converted to or continued as a Eurocurrency Standby Loan or
an ABR Standby Loan, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Standby
Borrowing is to be converted to or continued as a Eurocurrency Standby Loan, the
Interest Period with respect thereto. If no Interest Period is specified in any
such notice with respect to any conversion to or continuation as a Eurocurrency
Standby Loan, the Borrower shall be deemed to have selected an Interest Period
of one month's duration. If no notice shall have been given in accordance with
this Section 2.04 to convert or continue any Standby Borrowing, such Standby
Borrowing shall, at the end of the Interest Period applicable thereto (unless
repaid pursuant to the terms hereof), automatically be continued into a new
Interest Period as an ABR Standby Loan.
SECTION 2.05. Fees. (a) The Company agrees to pay to each Lender,
through the Administrative Agent, on each March 31, June 30, September 30 and
December 31 (with the first payment being due on June 30, 2004) and on each date
on which the Commitment of such Lender shall be terminated as provided herein, a
facility fee (a "Facility Fee"), at a rate per annum equal to 0.10% on the
amount of the Commitment of such Lender, whether used or unused, during the
preceding quarter (or other period commencing on the date hereof, or ending with
the Maturity Date or any date on which the Commitment of such Lender shall be
terminated). All Facility Fees
15
shall be computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be. The Facility Fee due to each Lender shall
commence to accrue on the date hereof, and shall cease to accrue on the earlier
of the Maturity Date and the termination of the Commitment of such Lender as
provided herein.
(b) The Company agrees to pay the Administrative Agent, for its own
account, the administrative and other fees separately agreed to by the Company
and the Administrative Agent (the "Administrative Fees").
(c) For each day on which the sum of the outstanding principal
amount of Loans shall be greater than 50% of the total Commitments, the Company
shall pay to the Administrative Agent for the account of each Lender a
utilization fee (a"Utilization Fee") at a rate per annum equal to 0.125% on the
amount of the outstanding Loans of such Lender on such day. Accrued Utilization
Fees, if any, shall be payable in arrears on each March 31, June 30, September
30 and December 31, on the date on which the Commitments terminate and on any
later date on which the Loans are repaid in full; provided, however, that if
Utilization Fees would be payable on a day other than a Business Day, such date
of payment shall be extended to the next succeeding Business Day.
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders except that the Administrative Fees shall be paid
pursuant to paragraph (b) above. Once paid, none of the Fees shall be refundable
under any circumstances.
SECTION 2.06. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby agrees that the outstanding principal balance of each Standby
Loan shall be payable on the Maturity Date. Each Loan shall bear interest on the
outstanding principal balance thereof as set forth in Section 2.07.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness to such Lender resulting from
each Loan made by 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.
(c) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the currency of each
Loan, the Borrower of each Loan, the Type of each Loan made and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative agent hereunder
from each Borrower and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.06 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations therein recorded; provided, however, that the failure of any Lender
or the Administrative Agent
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to maintain such accounts or any error therein shall not in any manner affect
the obligations of the Borrowers to repay the Loans in accordance with their
terms.
SECTION 2.07. Interest on Loans. (a) Subject to the provisions of
Section 2.08, the Loans comprising each Eurocurrency Borrowing shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to the LIBO Rate for the Interest Period
in effect for such Borrowing plus the Applicable Percentage.
(b) Subject to the provisions of Section 2.08, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 365 or 366 days, as the case may be, for
periods during which the Alternate Base Rate is determined by reference to the
Prime Rate and 360 days for other periods) at a rate per annum equal to the
Alternate Base Rate.
(c) Interest on each Loan shall be payable on each Interest Payment
Date applicable to such Loan except as otherwise provided in this Agreement. The
applicable LIBO Rate or Alternate Base Rate for each Interest Period or day
within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.08. Default Interest. If a Borrower shall default in the
payment of the principal of or interest on any Loan or any other amount becoming
due hereunder, whether by scheduled maturity, notice of prepayment, acceleration
or otherwise, such Borrower shall on demand from time to time from the
Administrative Agent pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed as provided in Section
2.07(b)) equal to the Alternate Base Rate plus 2%.
SECTION 2.09. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurocurrency Borrowing, the Administrative Agent shall
have determined (i) that deposits in the currency and principal amounts of the
Eurocurrency Loans comprising such Borrowing are not generally available in the
London market or (ii) that reasonable means do not exist for ascertaining the
LIBO Rate, the Administrative Agent shall, as soon as practicable thereafter,
give telecopy notice of such determination to the Borrower and the Lenders. In
the event of any such determination under clause (i) or (ii) above, until the
Administrative Agent shall have advised the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, any request by a
Borrower for a Eurocurrency Standby Loan pursuant to Section 2.03(a) shall be
deemed to be a request for an ABR Borrowing. In the event the Required Lenders
notify the Administrative Agent that the rates at which Dollar deposits are
being offered will not adequately and fairly reflect the cost to such Lenders of
making or maintaining Eurocurrency Loans in Dollars during such Interest Period,
the Administrative Agent shall notify the applicable Borrower of such notice and
until the Required Lenders shall have advised the Administrative Agent that the
circumstances giving rise to such notice
17
no longer exist, any request by such Borrower for a Eurocurrency Standby Loan
shall be deemed a request for an ABR Borrowing. Each determination by the
Administrative Agent hereunder shall be made in good faith and shall be
conclusive absent manifest error.
SECTION 2.10. Termination and, Reduction of Commitments. (a) The
Commitments shall be automatically terminated on the Maturity Date.
(b) Upon at least three Business Days, prior irrevocable telecopy
notice to the Administrative Agent, the Company may at any time in whole
permanently terminate, or from time to time in part permanently reduce, the
Total Commitment; provided, however, that (i) each partial reduction of the
Total Commitment shall be in an integral multiple of $10,000,000 and in a
minimum principal amount of $50,000,000 and (ii) no such termination or
reduction shall be made (A) which would reduce the Total Commitment to an amount
less than the aggregate Standby Credit Exposures or (B) which would reduce any
Lender's Commitment to an amount that is less than the sum of such Lender's
Standby Credit Exposure.
(c) Each reduction in the Total Commitment hereunder shall be made
ratably among the Lenders in accordance with their respective Commitments. The
Borrowers shall pay to the Administrative Agent for the account of the Lenders,
on the date of each reduction or termination of the Total Commitment, the
Facility Fees on the amount of the Commitments terminated accrued through the
date of such termination or reduction.
(d) The Commitments will be automatically and permanently reduced by
an amount equal to the Net Proceeds of any sale or issuance by any Borrower or
any Subsidiary of any Borrower of any debt or equity securities in any public
offering or Rule 144A or other private placement transaction (other than (i) any
sale by any Borrower of commercial paper and (ii) any sale of equity securities
to employees, officers and directors of any Borrower or any Subsidiary of any
Borrower upon the exercise of employee stock options or pursuant to any employee
compensation or incentive arrangement). Each reduction in the Commitments
pursuant to this paragraph (d) will be effective on the second Business Day
following the date of receipt by a Borrower or a Subsidiary of the Net Proceeds
from any such sale or issuance.
SECTION 2.1l. Prepayment. (a) Each Borrower shall have the right at
any time and from time to time to prepay any Standby Borrowing in whole or in
part, upon giving telecopy notice (or telephone notice promptly confirmed by
telecopy) to the Administrative Agent: (i) before 10:00 a.m., New York City
time, three Business Days prior to prepayment, in the case of Eurocurrency
Standby Loans, and (ii) before 10:00 a.m., New York City time, one Business Day
prior to prepayment, in the case of ABR Standby Loans; provided, however, that
each partial prepayment shall be in an amount which is, in the case of any
Standby Borrowing, an integral multiple of $10,000,000 and not less than
$50,000,000.
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(b) On the date of any termination or reduction of the Commitments
pursuant to Section 2.10, the Borrowers shall pay or prepay so much of the
Standby Borrowings as shall be necessary in order that the aggregate Standby
Credit Exposures will not exceed the Total Commitment after giving effect to
such termination or reduction.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid, shall
be irrevocable and shall commit the applicable Borrower to prepay such Borrowing
(or portion thereof) by the amount stated therein on the date stated therein.
All prepayments under this Section 2.11 shall be subject to Section 2.14 but
otherwise without premium or penalty. All prepayments under this Section 2.11
shall be accompanied by accrued interest on the principal amount being prepaid
to the date of payment.
SECTION 2.12. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision herein, if after the date of this Agreement
any change in applicable law or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof (whether or not having the force of
law) shall result in the imposition, modification or applicability of any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by any Lender, or shall result in the
imposition on any Lender or the London interbank market of any other condition
affecting this Agreement, such Lender's Commitment or any Eurocurrency Loan made
by such Lender, and the result of any of the foregoing shall be to increase the
cost to such Lender of making or maintaining any Eurocurrency Loan or to reduce
the amount of any sum received or receivable by such Lender hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender to be
material, then such additional amount or amounts as will compensate such Lender
for such additional costs or reduction will be paid by the Borrowers to such
Lender as provided in paragraph (c) of this Section.
(b) If any Lender shall have determined that the adoption of any
law, rule, regulation or guideline arising out of the July 1988 report of the
Basle Committee on Banking Regulations and Supervisory Practices entitled
"International Convergence of Capital Measurement and Capital Standards", or the
adoption after the date hereof of any other law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or any lending office of
such Lender) or any Lender's holding company with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, if any, as a consequence of this Agreement, such
Lender's Commitment or the Loans made issued by such Lender pursuant hereto to a
level below that which such Lender or such Lender's holding company could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's policies and the policies of such Lender's holding company with
respect to capital adequacy) by an amount
19
deemed by such Lender to be material, then from time to time such additional
amount or amounts as will compensate such Lender for such reduction will be paid
by the Borrowers to such Lender.
(c) A certificate of any Lender setting forth such amount or amounts
as shall be necessary to compensate such Lender or its holding company as
specified in paragraph (a) or (b) above, as the case may be, shall be delivered
to the Company and shall be conclusive absent manifest error. The Borrowers
shall pay such Lender the amount shown as due on any such certificate delivered
by it within 10 days after its receipt of the same.
(d) Failure on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in
return on capital with respect to any period shall not constitute a waiver of
such Lender's right to demand compensation with respect to such period or any
other period; provided, however, that no Lender shall be entitled to
compensation under this Section 2.12 for any costs incurred or reductions
suffered with respect to any date unless it shall have notified the Company that
it will demand compensation for such costs or reductions under paragraph (c)
above not more than 90 days after the later of (i) such date and (ii) the date
on which it shall have become aware of such costs or reductions. The protection
of this Section shall be available to each Lender regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition which shall have occurred or been
imposed.
SECTION 2.13. Change in Legality. (a) Notwithstanding any other
provision herein, if any change in any law or regulation or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Lender
to make or maintain any Eurocurrency Loan or to give effect to its obligations
as contemplated hereby with respect to any Eurocurrency Loan, then, by written
notice to the Company and to the Administrative agent, such Lender may:
(i) declare that Eurocurrency Loans will not thereafter be made by
such Lender hereunder, whereupon any request for a Eurocurrency Standby
Loan shall, as to such Lender only, be deemed a request for an ABR Loan,
unless such declaration shall be subsequently withdrawn; and
(ii) require that all outstanding Eurocurrency Loans made by it be
converted to ABR Loans, in which event all such Eurocurrency Loans shall
be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above with
respect to Eurocurrency Loans, all payments and prepayments of principal which
would otherwise have been applied to repay the Eurocurrency Loans that would
have been made by such Lender or the converted Eurocurrency Loans, of such
Lender shall instead be applied to
20
repay the ABR Loans made by such Lender in lieu of, or resulting from the
conversion of, such Eurocurrency Loans.
(b) For purposes of this Section 2.13, a notice by any Lender shall
be effective as to each Eurocurrency Loan, if lawful, on the last day of the
Interest Period currently applicable to such Eurocurrency Loan; in all other
cases such notice shall be effective on the date of receipt.
SECTION 2.14. Indemnity. The Borrowers shall indemnify each Lender
against any out-of-pocket loss or expense which such Lender may sustain or incur
as a consequence of (a) any failure to borrow or to refinance, convert or
continue any Loan hereunder after irrevocable notice of such borrowing,
refinancing, conversion or continuation has been given pursuant to Section 2.03
or 2.04, (b) any payment, prepayment or conversion, or assignment required under
Section 2.19, of a Eurocurrency Loan required by any other provision of this
Agreement or otherwise made or deemed made on a date other than the last day of
the Interest Period, if any, applicable thereto, (c) any default in payment or
prepayment of the principal amount of any Loan or any part thereof or interest
accrued thereon, as and when due and payable (at the due date thereof, whether
by scheduled maturity, acceleration, irrevocable notice of prepayment or
otherwise) or (d) the occurrence of any Event of Default, including, in each
such case, any loss or reasonable expense sustained or incurred or to be
sustained or incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a
Eurocurrency Loan. Such loss or reasonable expense shall include an amount equal
to the excess, if any, as reasonably determined by such Lender, of (i) its cost
of obtaining the funds for the Loan being paid, prepaid, refinanced or not
borrowed (assumed to be the LIBO Rate applicable thereto) for the period from
the date of such payment, prepayment, refinancing or failure to borrow or
refinance to the last day of the Interest Period for such Loan (or, in the case
of a failure to borrow or refinance the Interest Period for such Loan which
would have commenced on the date of such failure) over (ii) the amount of
interest (as reasonably determined by such Lender) that would be realized by
such Lender in reemploying the funds so paid, prepaid or not borrowed or
refinanced for such period or Interest Period, as the case may be. A certificate
of any Lender setting forth any amount or amounts which such Lender is entitled
to receive pursuant to this Section shall be delivered to such Borrower and
shall be conclusive absent manifest error.
SECTION 2.15. Pro Rata Treatment. Except as required under Sections
2.13 and 2.19, each payment of the Facility Fees and each reduction of the
Commitments shall be allocated pro rata among the Lenders in accordance with
their respective Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Standby Loans). Except as required under Section 2.13, each payment
or repayment of principal of any Standby Borrowing and each refinancing or
conversion of any Standby Borrowing shall be allocated pro rata among the
Lenders in accordance with the respective principal amounts of their outstanding
Standby Loans comprising such Borrowing, and each payment of interest on any
Standby Borrowing shall be allocated pro rata among the Lenders in accordance
with the respective amounts of accrued and
21
unpaid interest on their outstanding Standby Loans comprising such Borrowing.
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole Dollar
amount.
SECTION 2.16. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim,
or pursuant to a secured claim under Section 506 of Title 11 of the United
States Code or other security or interest arising from, or in lieu of, such
secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Standby Loans as a result
of which the unpaid principal portion of its Standby Loans shall be
proportionately less than the unpaid principal portion of the Standby Loans of
any other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Standby Loans of such other Lender,
so that the aggregate unpaid principal amount of the Standby Loans and
participations in the Standby Loans of each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Standby Loans then
outstanding as the principal amount of its Standby Loans prior to such exercise
of banker's lien, setoff or counterclaim or other event was to the principal
amount of all Standby Loans outstanding prior to such exercise of banker's lien,
setoff or counterclaim or other event; provided, however, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section 2.16
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. Any
Lender holding a participation in a Standby Loan deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing to such Lender by reason
thereof as fully as if such Lender had made a Standby Loan in the amount of such
participation.
SECTION 2.17. Payments. (a) The Borrowers shall make each payment
(including principal of or interest on any Borrowing and any Fees or other
amounts) hereunder without deduction, counter-claim or setoff in immediately
available funds from an account in the United States not later than 12:00 noon,
local time at the place of payment, on the date when due in immediately
available funds to the Administrative Agent at its offices at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx. Each such payment shall be made in Dollars.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder shall become due, or otherwise
would occur, on a day that is not a Business Day, such payment may be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or Fees, if applicable.
SECTION 2.18. Taxes. (a) Any and all payments to the Lenders
hereunder shall be made, in accordance with Section 2.17, free and clear of and
without deduction for any and all current or future taxes, levies, imposts,
deductions, charges or
22
withholdings, and all liabilities with respect thereto, excluding (i) income
taxes imposed on the income of the Administrative Agent or any Lender (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the income, assets
or net worth of the Administrative Agent or any Lender (or Transferee), in each
case by the jurisdiction under the laws of which the Administrative Agent or
such Lender (or Transferee) is organized or doing business (other than as a
result of entering into this Agreement, performing any obligations hereunder,
receiving any payments hereunder or enforcing any rights hereunder), or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or individually,
"Taxes"). If any Borrower shall be required to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender (or any Transferee) or the
Administrative Agent, (i) the sum payable shall be increased by the amount (an
"additional amount") necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.18) such Lender (or Transferee) or the Administrative Agent (as the case may
be) shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrowers shall pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document ("Other Taxes").
(c) The Borrowers shall indemnify each Lender (or Transferee) and
the Administrative Agent for the full amount of Taxes and Other Taxes paid by
such Lender (or Transferee) or the Administrative Agent, as the case may be, and
any liability (including penalties, interest and expenses (including reasonable
attorney's fees and expenses)) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted by
the relevant Governmental Authority. A certificate as to the amount of such
payment or liability prepared by a Lender (or Transferee) or the Administrative
Agent on its behalf, absent manifest error, shall be final, conclusive and
binding for all purposes. Such indemnification shall be made within 30 days
after the date any Lender (or Transferee) or the Administrative Agent, as the
case may be, makes written demand therefor, which written demand shall be made
within 60 days of the date such Lender (or Transferee) or the Administrative
Agent receives written demand for payment of such Taxes or Other Taxes from the
relevant Governmental Authority.
(d) If a Lender (or Transferee) or the Administrative Agent shall
become aware that it is entitled to claim a refund from a Governmental Authority
in respect of Taxes or Other Taxes as to which it has been indemnified by the
Borrowers, or with respect to which the Borrowers have paid additional amounts,
pursuant to this Section 2.18, it shall promptly notify the Borrowers of the
availability of such refund claim and shall, within 30 days after receipt of a
request by the Borrowers, make a claim
23
to such Governmental Authority for such refund at the Borrowers' expense. If a
Lender (or Transferee) or the Administrative agent receives a refund (including
pursuant to a claim for refund made pursuant to the preceding sentence) in
respect of any Taxes or Other Taxes as to which it has been indemnified by the
Borrowers or with respect to which the Borrowers have paid additional amounts
pursuant to this Section 2.18, it shall within 30 days from the date of such
receipt pay over such refund to the Borrowers (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrowers under this
Section 2.18 with respect to the Taxes or Other Taxes giving rise to such
refund), net of all out-of-pocket expenses of such Lender (or Transferee) or the
Administrative Agent and without interest (other than interest paid by the
relevant Governmental Authority with respect to such refund); provided, however,
that the Borrowers, upon the request of such Lender (or Transferee) or the
Administrative Agent, agree to repay the amount paid over to the Borrowers (plus
penalties, interest or other charges) to such Lender (or Transferee) or the
Administrative Agent in the event such Lender (or Transferee) or the
Administrative Agent is required to repay such refund to such Governmental
Authority.
(e) As soon as practicable after the date of any payment of Taxes or
Other Taxes by the Borrowers to the relevant Governmental Authority, the
Borrowers will deliver to the Administrative Agent, at its address referred to
in Section 9.01, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section 2.18
shall survive the payment in full of the principal of and interest on all Loans
made hereunder.
(g) Each Lender (or Transferee) that is organized under the laws of
a jurisdiction other than the United States, any State thereof or the District
of Columbia (a "Non-U.S. Lender") shall deliver to the Company and the
Administrative Agent two copies of either United States Internal Revenue Service
Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8BEN, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S. Lender
delivers a Form W-8BEN, a certificate representing that such Non-U.S. Lender is
not a bank for purposes of Section 881(c) of the Code, is not a 10 percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Company and is not a controlled foreign corporation related to the Company
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Company under
this Agreement. Such forms shall be delivered by each Non-U.S. Lender on or
before the date it becomes a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on or before the date such
participation holder becomes a Transferee hereunder) and on or before the date,
if any, such Non-U.S. Lender changes its applicable lending office by
designating a different lending office (a "New Lending Office"). In addition,
each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form
24
previously delivered by such Non-U.S. Lender. Notwithstanding any other
provision of this Section 2.18(g), a Non-U.S. Lender shall not be required to
deliver any form pursuant to this Section 2.18(g) that such Non-U.S. Lender is
not legally able to deliver.
(h) The Company shall not be required to indemnify any Non-U.S.
Lender, or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to paragraph (a) or (c) above to
the extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such Non-U.S. Lender became a
party to this Agreement (or, in the case of a Transferee that is a participation
holder, on the date such participation holder became a Transferee hereunder) or,
with respect to payments to a New Lending Office, the date such Non-U.S. Lender
designated such New Lending Office with respect to a Loan; provided, however,
that this clause (i) shall not apply to any Transferee or New Lending Office
that becomes a Transferee or New Lending Office as a result of an assignment,
participation, transfer or designation made at the request of the Company; and
provided further, however, that this clause (i) shall not apply to the extent
the indemnity payment or additional amounts any Transferee, or Lender (or
Transferee) through a New Lending Office, would be entitled to receive (without
regard to this clause (i)) do not exceed the indemnity payment or additional
amounts that the person making the assignment, participation or transfer to such
Transferee, or Lender (or Transferee) making the designation of such New Lending
Office, would have been entitled to receive in the absence of such assignment,
participation, transfer or designation or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of paragraph (g) above.
(i) Any Lender (or Transferee) claiming any indemnity payment or
additional amounts payable pursuant to this Section 2.18 shall use reasonable
efforts (consistent with legal and regulatory restrictions) to file any
certificate or document reasonably requested in writing by the Company or to
change the jurisdiction of its applicable lending office if the making of such a
filing or change would avoid the need for or reduce the amount of any such
indemnity payment or additional amounts that may thereafter accrue and would
not, in the sole determination of such Lender (or Transferee), be otherwise
disadvantageous to such Lender (or Transferee).
(j) Nothing contained in this Section 2.18 shall require any Lender
(or Transferee) or the Administrative Agent to make available any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
SECTION 2.19. Duty to Mitigate; Assignment of Commitments Under
Certain Circumstances. (a) Any Lender (or Transferee) claiming any additional
amounts payable pursuant to Section 2.12 or Section 2.18 or exercising its
rights under Section 2.13 shall use reasonable efforts (consistent with legal
and regulatory restrictions) to file any certificate or document requested by
the Company or to change the jurisdiction of its applicable lending office if
the making of such a filing or change would avoid the need for or reduce the
amount of any such additional amounts which may thereafter accrue or avoid the
circumstances giving rise to such exercise and would not, in the sole
25
determination of such Lender (or Transferee), be otherwise disadvantageous to
such Lender (or Transferee).
(b) In the event that any Lender shall have delivered a notice or
certificate pursuant to Section 2.12 or 2.13, or the Company shall be required
to make additional payments to any Lender under Section 2.18, the Company shall
have the right, at its own expense, upon notice to such Lender and the
Administrative Agent, to require such Lender to transfer and assign without
recourse, representation or warranty (in accordance with and subject to the
restrictions contained in Section 9.04) all interests, rights and obligations
contained hereunder to another financial institution approved by the
Administrative Agent (which approval shall not be unreasonably withheld) which
shall assume such obligations; provided that (i) no such assignment shall
conflict with any law, rule or regulation or order of any Governmental Authority
and (ii) the assignee or the Company, as the case may be, shall pay to the
affected Lender in immediately available funds on the date of such assignment
the principal of and interest accrued to the date of payment on the Loans made
by it hereunder and all other amounts accrued for its account or owed to it
hereunder.
ARTICLE III
Representations and Warranties
Each Borrower represents and warrants to each of the Lenders that:
SECTION 3.01. Organization; Powers. Each Borrower and each of the
Subsidiaries (a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as proposed to be conducted, (c) is qualified to
do business in every jurisdiction where such qualification is required, except
where the failure so to qualify would not result in a Material Adverse Effect,
and (d) in the case of each Borrower, has the corporate power and authority to
execute, deliver and perform its obligations under the Loan Documents and to
borrow hereunder and thereunder.
SECTION 3.02. Authorization. The execution, delivery and performance
by each of the Borrowers of each Loan Document to which it is or will be a party
and the Borrowings hereunder (collectively, the "Transactions") (a) have been
or, upon execution and delivery thereof, will be duly authorized by all
requisite corporate action and (b) will not (i) violate (A) any provision of any
law, statute, rule or regulation (including the Margin Regulations) or of the
certificate of incorporation or other constitutive documents or by-laws of the
Borrowers, (B) any order of any Governmental Authority or (C) any provision of
any indenture, agreement or other instrument to which any Borrower is a party or
by which it or any of its property is or may be bound, (ii) be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under any such indenture, agreement or other instrument or (iii)
result in the creation or imposition of any lien upon any property or assets of
any Borrower.
26
SECTION 3.03. Enforceability. This Agreement and each other Loan
Document to which a Borrower is a party constitutes a legal, valid and binding
obligation of each Borrower enforceable in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval
of, registration or filing with or other action by any Governmental Authority,
other than those which have been taken, given or made, as the case may be, is or
will be required with respect to any Borrower in connection with the
Transactions.
SECTION 3.05. Financial Statements. (a) The Company has heretofore
furnished to the Administrative Agent and the Lenders copies of its consolidated
balance sheet and statements of income, cash flow and retained earnings as of
and for the year ended December 31, 2003. Such financial statements present
fairly, in all material respects, the consolidated combined financial condition
and the results of operations of the Company and the Subsidiaries as of such
dates and for such periods in accordance with GAAP.
(b) As of the Effective Date, there has been no material adverse
change in the consolidated financial condition of the Company and the
Subsidiaries taken as a whole from the financial condition reported in the
financial statements referenced in paragraph (a) of this Section 3.05.
SECTION 3.06. Litigation; Compliance with Laws. (a) As of the
Effective Date, there are no actions, proceedings or investigations filed or (to
the knowledge of the Borrowers) threatened or affecting any Borrower or any
Subsidiary in any court or before any Governmental Authority or arbitration
board or tribunal which question the validity or legality of this Agreement, the
Transactions or any action taken or to be taken pursuant to this Agreement and
no order or judgment has been issued or entered restraining or enjoining any
Borrower or any Subsidiary from the execution, delivery or performance of this
Agreement nor is there any other action, proceeding or investigation filed or
(to the knowledge of any Borrower or any Subsidiary) threatened against any
Borrower or any Subsidiary in any court or before any Governmental Authority or
arbitration board or tribunal which would be reasonably likely to result in a
Material Adverse Effect or materially restrict the ability of any Borrower to
comply with its obligations under the Loan documents.
(b) Neither any Borrower nor any Subsidiary is in violation of any
law, rule or regulation (including any law, rule or regulation relating to the
protection of the environment or to employee health or safety), or in default
with respect to any judgment, writ, injunction or decree of any Governmental
Authority, where such violation or default would be reasonably likely to result
in a Material Adverse Effect.
(c) No exchange control law or regulation materially restricts any
Borrower from complying with its obligations in respect of any Loan or otherwise
under this Agreement.
27
SECTION 3.07. Federal Reserve Regulations. (a) Neither any Borrower
nor any Subsidiary that will receive proceeds of the Loans hereunder is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying Margin Stock.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry Margin Stock or to refund indebtedness originally incurred for
such purpose, or for any other purpose which entails a violation of, or which is
inconsistent with, the provisions of the Margin Regulations.
SECTION 3.08. Investment Company Act; Public Utility Holding Company
Act. No Borrower is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 (the "1940 Act") or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Use of Proceeds. All proceeds of the Loans shall be
used for the purposes referred to in the recitals to this Agreement.
SECTION 3.10. Full Disclosure; No Material Misstatements. None of
the representations or warranties made in writing by any Borrower in connection
with this Agreement as of the date such representations and warranties are made
or deemed made, and no report, financial statement or other information
furnished by or on behalf of any Borrower to the Administrative Agent or any
Lender pursuant to or in connection with this Agreement or the credit facilities
established hereby, contains or will contain any material misstatement of fact
or omits or will omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were or
will be made, not misleading.
SECTION 3.11. Taxes. Each Borrower and each of the material
Subsidiaries have filed or caused to be filed all Federal, state and local tax
returns which are required to be filed by them, and have paid or caused to be
paid all taxes shown to be due and payable on such returns or on any assessments
received by any of them, other than any taxes or assessments the validity of
which is being contested in good faith by appropriate proceedings, and with
respect to which appropriate accounting reserves have to the extent required by
GAAP been set aside.
SECTION 3.12. Employee Pension Benefit Plans. The present aggregate
value of accumulated benefit obligations of all unfunded and underfunded pension
plans of the Company and its Subsidiaries (based on those assumptions used for
disclosure in corporate financial statements in accordance with GAAP) did not,
as of December 31, 2003, exceed by more than $641,400,000 the value of the
assets of all such plans. Of such $641,400,000, $179,600,000 is primarily
attributable to employee pension plans in countries where the funding of such
obligations is not required or customary and $98,700,000 relates primarily to
domestic pension plans where funding is not permitted under current tax
regulations. In these cases the Company has recorded book reserves to
28
meet the obligations. Trust assets totaling approximately $29,000,000 have been
established to provide for certain of the foregoing domestic pension benefits,
however, because of restrictions relating to bankruptcy or insolvency, such
funds are not included in the funded amount of plans for purposes of GAAP.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder are subject
to the satisfaction of the following conditions:
SECTION 4.01. All Extensions of Credit. On the date of each
Borrowing:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03.
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the date
of such Borrowing with the same effect as though made on and as of such date,
except to the extent such representations and warranties expressly relate to an
earlier date.
(c) At the time of and immediately after such Borrowing no Event of
Default or Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
each Borrower on the date of such Borrowing or as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Effective Date. On the Effective Date:
(a) The Administrative Agent shall have received a favorable written
opinion of Xxxxxxxx X. Xxxxxx, Esq., Vice President, Corporate Secretary and
Associate General Counsel, dated the Effective Date and addressed to the Lenders
and satisfactory to the Administrative Agent to the effect set forth in Exhibit
C hereto.
(b) The Administrative Agent shall have received (i) a copy of the
certificate of incorporation, including all amendments thereto, of the Company,
certified as of a recent date by the Secretary of State of its state of
incorporation, and a certificate as to the existence of the Company as of a
recent date from such Secretary of State; (ii) a certificate of the Secretary or
an Assistant Secretary of the Company dated the Effective Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws of the
Company as in effect on the Effective Date and at all times since a date prior
to the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of
Directors of the Company authorizing the execution, delivery and performance of
this Agreement and the Borrowings hereunder, and that such resolutions have not
been modified, rescinded or
29
amended and are in full force and effect, (C) that the certificate of
incorporation referred to in clause (i) above has not been amended since the
date of the last amendment thereto shown on the certificate of existence
furnished pursuant to such clause (i) and (D) as to the incumbency and specimen
signature of each officer executing this Agreement or any other document
delivered in connection herewith on behalf of the Company; and (iii) a
certificate of another officer of the Company as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to (ii) above.
(c) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by a Financial Officer of the Company,
confirming compliance with the conditions precedent set forth in paragraphs (b)
and (c) of Section 4.01.
(d) The Administrative Agent shall have received any Fees or other
amounts due and payable hereunder on or prior to the Effective Date.
SECTION 4.03. First Borrowing by Each Borrowing Subsidiary. On or
prior to the first date on which Loans are made to the benefit of any Borrowing
Subsidiary:
(a) The Lenders shall have received the favorable written opinion of
counsel satisfactory to the Administrative Agent, addressed to the Lenders and
satisfactory to the Administrative Agent to the effect set forth in Exhibit C
hereto.
(b) Each Lender shall have received a copy of the Borrowing
Subsidiary Agreement executed by such Borrowing Subsidiary.
ARTICLE V
Covenants
A. Affirmative Covenants. Each Borrower covenants and agrees with
each Lender and the Administrative Agent that so long as this Agreement shall
remain in effect or the principal of or interest on any Loan or any Fees or any
other amounts payable hereunder shall be unpaid, unless the Required Lenders
shall otherwise consent in writing, it will, and will cause each of the
Subsidiaries to:
SECTION 5.01. Existence. Do or cause to be done all things necessary
to preserve and keep in full force and effect its corporate existence, rights
and franchises, except as expressly permitted under Section 5.09; provided,
however, that nothing in this Section shall prevent the abandonment or
termination of the existence, rights or franchises of any Subsidiary or any
rights or franchises of any Borrower if such abandonment or termination is in
the best interests of the Borrowers and is not disadvantageous in any material
respect to the Lenders.
SECTION 5.02. Business and Properties. Comply in all material
respects with all applicable laws, rules, regulations and orders of any
Governmental Authority (including any of the foregoing relating to the
protection of the environment or to
30
employee health and safety), whether now in effect or hereafter enacted; and at
all times maintain and preserve all property material to the conduct of its
business and keep such property in good repair, working order and condition and
from time to time make, or cause to be made, all needful and proper repairs,
renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted
at all times.
SECTION 5.03. Financial Statements, Reports, etc. In the case of the
Company, furnish to the Administrative Agent for distribution to each Lender:
(a) within 120 days after the end of each fiscal year, its
consolidated balance sheet and the related consolidated statements of
income and cash flows showing its consolidated financial condition as of
the close of such fiscal year and the consolidated results of its
operations during such year, all audited by Deloitte & Touche LLP or other
independent certified public accountants of recognized national standing
selected by the Company and accompanied by an opinion of such accountants
to the effect that such consolidated financial statements fairly present
its financial condition and results of operations on a consolidated basis
in accordance with GAAP (it being agreed that the requirements of this
paragraph may be satisfied by the delivery pursuant to paragraph (d) below
of an annual report on Form 10-K containing the foregoing);
(b) within 90 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
consolidated statements of income, cash flow and stockholders' equity,
showing its consolidated financial condition as of the close of such
fiscal quarter and the consolidated results of its operations during such
fiscal quarter and the then elapsed portion of the fiscal year, all
certified by one of its Financial Officers as fairly presenting its
financial condition and results of operations on a consolidated basis in
accordance with GAAP, subject to normal year-end audit adjustments(it
being agreed that the requirements of this paragraph may be satisfied by
the delivery pursuant to paragraph (d) below of a quarterly report on Form
10-Q containing the foregoing);
(c) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, a certificate of a Financial Officer
certifying that, to the best of such Financial Officer's knowledge, no
Event of Default or Default has occurred or, if such an Event of Default
or Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto;
(d) promptly after the same become publicly available, copies of all
reports on forms 10-K, 10-Q and 8-K filed by it with the SEC, or any
Governmental Authority succeeding to any of or all the functions of the
SEC, or, in the case of the Company, copies of all reports distributed to
its shareholders, as the case may be;
31
(e) promptly, from time to time, such other information as any
Lender shall reasonably request through the Administrative Agent; and
(f) concurrently with any delivery of financial statements under
paragraph (a) or (b) above, calculations of the financial test set forth
in Section 5.12.
SECTION 5.04. Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers, and maintain
such other insurance, to such extent and against such risks, including fire and
other risks insured against by extended coverage, as is customary with companies
similarly situated and in the same or similar businesses (it being understood
that the Borrowers and their Subsidiaries may self-insure to the extent
customary with companies similarly situated and in the same or similar
businesses).
SECTION 5.05. Obligations and Taxes. Pay and discharge promptly when
due all taxes, assessments and governmental charges imposed upon it or upon its
income or profits or in respect of its property, as well as all other material
liabilities, in each case before the same shall become delinquent or in default
and before penalties accrue thereon, unless and to the extent that the same are
being contested in good faith by appropriate proceedings and adequate reserves
with respect thereto shall, to the extent required by GAAP, have been set aside.
SECTION 5.06. Litigation and Other Notices. Give the Administrative
Agent prompt written notice of the following (which the Administrative Agent
shall promptly provide to the Lenders):
(a) the filing or commencement of, or any written threat or written
notice of intention of any person to file or commence, any action, suit or
proceeding which could reasonably be expected to result in a Material
Adverse Effect; and
(b) any Event of Default or Default, specifying the nature and
extent thereof and the action (if any) which is proposed to be taken with
respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Maintain financial records in accordance with GAAP and, upon
reasonable notice, at all reasonable times, permit any authorized representative
designated by the Administrative Agent to visit and inspect the properties of
the Company and of any material Subsidiary and to discuss the affairs, finances
and condition of the Company and any material Subsidiary with a Financial
Officer of the Company and such other officers as the Company shall deem
appropriate.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans only
for the purposes set forth in the recitals to this Agreement.
B. Negative Covenants. Each Borrower covenants and agrees with each
Lender and the Administrative Agent that so long as this Agreement shall remain
in effect or the principal of or interest on any Loan or any Fees or any other
amounts
32
payable hereunder shall be unpaid, unless the Required Lenders shall otherwise
consent in writing, it will not, and will not cause or permit any of the
Subsidiaries to:
SECTION 5.09. Consolidations, Mergers, and Sales of Assets.
Consolidate or merge with or into any other person or sell, lease or transfer
all or substantially all of its property and assets, or agree to do any of the
foregoing, unless (a) no Default or Event of Default has occurred and is
continuing or would have occurred immediately after giving effect thereto, and
(b) in the case of a consolidation or merger involving the Company and in which
the Company is not the surviving corporation or, in the case where the Company
sells, leases or transfers all or substantially all of its property and assets,
the surviving corporation or person purchasing, leasing or receiving such
property and assets is organized in the United States of America or a state
thereof and agrees to be bound by the terms and provisions applicable to the
Company hereunder.
SECTION 5.10. Limitations on Liens. In the case of the Company,
create, suffer to be created, or assume (directly or indirectly) any mortgage,
pledge or other lien upon any Principal Property, or permit any Restricted
Subsidiary to create, suffer to be created, or assume (directly or indirectly)
any mortgage, pledge or other lien upon any Principal Property; provided,
however, that this covenant shall not apply to any of the following:
(a) any mortgage, pledge or other lien on any Principal Property
hereafter acquired, constructed or improved by the Company or any
Restricted Subsidiary which is created or assumed to secure or provide for
the payment of any part of the purchase price of such property or the cost
of such construction or improvement, or any mortgage, pledge or other lien
on any Principal Property existing at the time of acquisition thereof;
provided, however, that the mortgage, pledge or other lien shall not
extend to any Principal Property theretofore owned by the Company or any
Restricted Subsidiary;
(b) any mortgage, pledge or other lien on any Principal Property
existing on the date of this Agreement as described in Schedule 5.10;
(c) any mortgage, pledge or other lien existing upon any property of
a company which is merged with or into or is consolidated into, or
substantially all the assets or shares of capital stock of which are
acquired by, the Company or a Restricted Subsidiary, at the time of such
merger, consolidation or acquisition; provided that such mortgage, pledge
or other lien does not extend to any other Principal Property, other than
improvements to the property subject to such mortgage, pledge or other
lien;
(d) any pledge or deposit to secure payment of workers' compensation
or insurance premiums, or in connection with tenders, bids, contracts
(other than contracts for the payment of money) or leases;
(e) any pledge of, or other lien upon, any assets as security for
the payment of any tax, assessment or other similar charge by any
Governmental
33
Authority or public body, or as security required by law or governmental
regulation as a condition to the transaction of any business or the
exercise of any privilege or right;
(f) any pledge or lien necessary to secure a stay of any legal or
equitable process in a proceeding to enforce a liability or obligation
contested in good faith by the Company or a Restricted Subsidiary or
required in connection with the institution by the Company or a Restricted
Subsidiary of any legal or equitable proceeding to enforce a right or to
obtain a remedy claimed in good faith by the Company or a Restricted
Subsidiary, or required in connection with any order or decree in any such
proceeding or in connection with any contest of any tax or other
governmental charge; or the making of any deposit with or the giving of
any form of security to any governmental agency or any body created or
approved by law or governmental regulation in order to entitle the Company
or a Restricted Subsidiary to maintain self-insurance or to participate in
any fund in connection with workers' compensation, unemployment insurance,
old age pensions or other social security or to share in any provisions or
other benefits provided for companies participating in any such
arrangement or for liability on insurance of credits or other risks;
(g) any mechanics', carriers', workmen's, repairmen's, or other like
liens, if arising in the ordinary course of business, in respect of
obligations which are not overdue or liability for which is being
contested in good faith by appropriate proceedings;
(h) any lien or encumbrance on property in favor of the United
States of America, or of any agency, department or other instrumentality
thereof, to secure partial, progress or advance payments pursuant to the
provisions of any contract;
(i) any mortgage, pledge or other lien securing any indebtedness
incurred in any manner to finance or recover the cost to the Company or
any Restricted Subsidiary of any physical property, real or personal,
which prior to or simultaneously with the creation of such indebtedness
shall have been leased by the Company or a Restricted Subsidiary to the
United States of America or a department or agency thereof at an aggregate
rental, payable during that portion of the initial term of such lease
(without giving effect to any options of renewal or extension) which shall
be unexpired at the date of the creation of such indebtedness, sufficient
(taken together with any amounts required to be paid by the lessee to the
lessor upon any termination of such lease) to pay in full at the stated
maturity date or dates thereof the principal of and the interest on such
indebtedness;
(j) any mortgage, pledge or other lien securing indebtedness of a
Restricted Subsidiary to the Company or a Restricted Subsidiary, provided
that in the case of any sale or other disposition of such indebtedness by
the Company or such Restricted Subsidiary, such sale or other disposition
shall be deemed to
34
constitute the creation of another mortgage, pledge or other lien not
permitted by this clause (j);
(k) any mortgage, pledge or other lien affecting property of the
Company or any Restricted Subsidiary securing indebtedness of the United
States of America or a State thereof (or any instrumentality or agency of
either thereof) issued in connection with a pollution control or abatement
program required in the opinion of the Company to meet environmental
criteria with respect to manufacturing or processing operations of the
Company or any Restricted Subsidiary and the proceeds of which
indebtedness have financed the cost of acquisition of such program;
(l) the renewal, extension, replacement or refunding of any
mortgage, pledge, lien, deposit, charge or other encumbrance permitted by
the foregoing provisions of this covenant upon the same property
theretofore subject thereto, or the renewal, extension, replacement or
refunding of the amount secured thereby, provided that in each case such
amount outstanding at that time shall not be increased;
(m) any other mortgage, pledge or other lien, provided that
immediately after the creation or assumption of such mortgage, pledge or
other lien, the total of (x) the aggregate principal amount of
indebtedness of the Company and all Restricted Subsidiaries secured by all
mortgages, pledges and other liens created or assumed under the provisions
of this clause (m), plus (y) the aggregate amount of Capitalized
Lease-Back Obligations of the Company and Restricted Subsidiaries under
the entire unexpired terms of all leases entered into in connection with
sale and lease-back transactions which would have been precluded by the
provisions of Section 5.11 but for the satisfaction of the condition set
forth in clause (b) thereof, shall not exceed an amount equal to 5% of
Consolidated Net Tangible Assets; or
The lease of any property by the Company or a Restricted Subsidiary and rental
obligations with respect thereto (whether or not arising out of a sale and
lease-back of properties and whether or not in accordance with GAAP such
property is carried as an asset and such rental obligations are carried as
indebtedness on the Company's or a Restricted Subsidiary's balance sheet) shall
not in any event be deemed to be the creation of a mortgage, pledge or other
lien.
SECTION 5.11. Limitations on Sale and Leaseback Transactions. In the
case of the Company or any Restricted Subsidiary, enter into any arrangement
with any person providing for the leasing by the Company or any Restricted
Subsidiary of any Principal Property (except for temporary leases for a term of
not more than three years and except for leases between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries), which property has
been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such person more than 120 days after the acquisition thereof or
the completion of construction and commencement of full operation thereof,
unless either (a) the Company shall apply an amount equal to the
35
greater of the Fair Value of such property or the net proceeds of such sale,
within 120 days of the effective date of any such arrangement, to the retirement
(other than any mandatory retirement or by way of payment at maturity) of
Indebtedness or to the acquisition, construction, development or improvement of
properties, facilities or equipment used for operating purposes which are, or
upon such acquisition, construction, development or improvement will be, a
Principal Property or a part thereof; or (b) at the time of entering into such
arrangement, such Principal Property could have been subjected to a mortgage,
pledge or other lien securing indebtedness of the Company or a Restricted
Subsidiary in a principal amount equal to the Capitalized Lease-Back Obligations
with respect to such Principal Property under paragraph (m) of Section 5.10.
SECTION 5.12. Consolidated EBITDA to Consolidated Interest Expense.
Permit the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest
Expense, each as calculated for any period of the four prior consecutive fiscal
quarters, to be less than 3.75 to 1.0.
ARTICLE VI
Events of Default
In case of the happening of any of the following events (each an
"Event of Default"):
(a) any representation or warranty made or deemed made in or in
connection with the execution and delivery of this Agreement or the
Borrowings hereunder shall prove to have been false or misleading in any
material respect when so made, deemed made or furnished;
(b) default shall be made in the payment of any principal of any
Loan when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or any other amount (other than an amount referred to in
paragraph (b) above) due hereunder, when and as the same shall become due
and payable, and such default shall continue unremedied for a period often
days;
(d) default shall be made in the due observance or performance of
any covenant, condition or agreement contained in Section 5.01, 5.09,
5.10, 5.11 or 5.12 and, in the case of any default under Section 5.10,
such default shall continue for 30 days;
(e) default shall be made in the due observance or performance of
any covenant, condition or agreement contained herein or in any other Loan
Document (other than those specified in clauses (b), (c) or (d) above) and
such default shall continue unremedied for a period of 30 days after
notice thereof from the Administrative Agent or any Lender to the Company;
36
(f) the Company or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $20,000,000, beyond the
period of grace, if any, provided in the agreement or instrument under
which such Indebtedness was created, or (ii) fail to observe or perform
any other term, covenant, condition or agreement contained in any
agreement or instrument evidencing or governing any such Indebtedness, or
any other event shall occur or condition shall exist, beyond the period of
grace, if any, provided in such agreement or instrument, if the effect of
any failure referred to in this clause (ii) is to cause, or to permit the
holder or holders of such Indebtedness or a trustee on its or their behalf
(with or without the giving of notice) to cause, such Indebtedness to
become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Company, or of a substantial part of the property
or assets of the Company or any Subsidiary with assets having gross book
value in excess of $25,000,000, under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Company or for a substantial part of the property or
assets of the Company or any Subsidiary with assets having gross book
value in excess of $25,000,000 or (iii) the winding up or liquidation of
the Company; and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;
(h) the Company or any Subsidiary with assets having a gross book
value in excess of $25,000,000 shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
Federal or state bankruptcy, insolvency, receivership or similar law, (ii)
consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described
in (g) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Company or for a substantial part of the property or assets of the
Company, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the
foregoing;
(i) one or more final judgments shall be entered by any court
against the Company or any of the Subsidiaries for the payment of money in
an aggregate amount in excess of $100,000,000 and such judgment
or judgments shall not have been paid, covered by insurance, discharged or
stayed for a period of 60 days, or a warrant of attachment or execution or
similar process shall have been issued or
37
levied against property of the Company or any of the Subsidiaries to
enforce any such judgment or judgments;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events,
could reasonably be expected to result in a Material Adverse Effect;
(k) a Change in Control shall occur; or
(l) a default or event of default shall have occurred and be
continuing under the Five-Year Competitive Advance and Revolving Credit
Facility Agreement dated as of November 10, 2000 among the Company, the
lenders name therein and JPMorgan Chase Bank, as administrative agent, as
such agreement may be amended and in effect from time to time;
then, and in every such event (other than an event with respect to the Company
or any Subsidiary with assets having gross book value in excess of $25,000,000
described in paragraph (g) or (h) above), and at any time thereafter during the
continuance of such event, the Administrative Agent, at the request of the
Required Lenders, shall, by notice to the Company, take any or all of the
following actions, at the same or different times: (i) terminate forthwith the
Commitments, (ii) declare the Loans then outstanding to be forthwith due and
payable in whole or in part, whereupon the principal of the Loans so declared to
be due and payable, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrowers accrued hereunder,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived anything contained herein to the contrary
notwithstanding; and, in the case of any event with respect to the Company or
any Subsidiary having a gross book value in excess of $25,000,000 described in
paragraph (g) or (h) above, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest
thereon and any unpaid accrued Fees and all other liabilities of the Borrowers
accrued hereunder shall automatically become due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived anything contained herein to the contrary
notwithstanding.
ARTICLE VII
Guarantee
The Company unconditionally and irrevocably guarantees the due and
punctual payment and performance, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or otherwise, of the
Guaranteed Obligations. The Company further agrees that the Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice or
further assent from it and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Guaranteed Obligations.
38
The Company waives presentment to, demand of payment from and
protest to the Borrowing Subsidiaries of any of the Guaranteed Obligations, and
also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. The obligations of the Company hereunder shall not be affected by
(a) the failure of any Lender to assert any claim or demand or to enforce any
right or remedy against the Borrowing Subsidiaries under the provisions of any
Loan Document or otherwise; (b) any rescission, waiver, amendment or
modification of any of the terms or provisions of any Loan Document, any
guarantee or any other agreement; or (c) the failure of any Lender to exercise
any right or remedy against any other guarantor of the Guaranteed Obligations.
The Company further agrees that its guarantee constitutes a
guarantee of payment when due and not of collection, and waives any right to
require that any resort be had by the Administrative Agent or any Lender to any
security, if any, held for payment of the Guaranteed Obligations or to any
balance of any deposit account or credit on its books, in favor of the Borrowing
Subsidiaries or any other person.
The obligations of the Company hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Guaranteed Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of the Company hereunder shall not be discharged or
impaired or otherwise affected by the failure of the Administrative Agent or any
Lender to assert any claim or demand or to enforce any remedy under any Loan
Document, any guarantee or any other agreement, by any waiver or modification of
any provision thereof, by any default, failure or delay, wilful or otherwise, in
the performance of the Guaranteed Obligations, or by any other act or omission
which may or might in any manner or to any extent vary the risk of the Company
or otherwise operate as a discharge of the Company as a matter of law or equity.
To the extent permitted by applicable law, the Company waives any
defense based on or arising out of any defense available to the Borrowing
Subsidiaries, including any defense based on or arising out of any disability of
the Borrowing Subsidiaries, or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrowing Subsidiaries, other than final payment in full
of the Guaranteed Obligations. The Administrative Agent and the Lenders may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or non-judicial sales, or exercise any other right or remedy
available to them against the Borrowing Subsidiaries, or any security without
affecting or impairing in any way the liability of the Company hereunder except
to the extent the Guaranteed Obligations have been fully, finally and
indefeasibly paid. The Company waives any defense arising out of any such
election even though such election operates to impair or to extinguish any right
of reimbursement or subrogation or other right or remedy of the Company against
the Borrowing Subsidiaries or any security.
39
The Company further agrees that its guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Guaranteed Obligation is
rescinded or must otherwise be restored by any Lender upon the bankruptcy or
reorganization of any Borrowing Subsidiary or otherwise.
In furtherance of the foregoing and not in limitation of any other
right which the Administrative Agent or any Lender may have at law or in equity
against the Company by virtue hereof, upon the failure of any Borrowing
Subsidiary to pay any Guaranteed Obligation when and as the same shall become
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, the Company hereby promises to and will, upon receipt of written
demand by the Administrative Agent or any Lender, forthwith pay or cause to be
paid to the Administrative Agent or such Lender in cash the amount of such
unpaid Guaranteed Obligation.
The Company hereby irrevocably waives and releases any and all
rights of subrogation, indemnification, reimbursement and similar rights which
it may have against or in respect of the Borrowing Subsidiaries at any time
relating to the Guaranteed Obligations, including all rights that would result
in its being deemed a "creditor" of the Borrowing Subsidiaries under the United
States Code as now in effect or hereafter amended, or any comparable provision
of any successor statute.
ARTICLE VIII
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
Any bank serving as Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be
40
necessary under the circumstances as provided in Section 9.07), and (c) except
as expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by any bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.07) or in the
absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent, by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by them to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to them orally or by telephone and
believed by them to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Company), independent accountants and other
experts selected by them, and shall not be liable for any action taken or not
taken by them in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Affiliates. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Affiliates of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities the Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders and the Company. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Company, to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives
41
notice of its resignation, then the retiring Administrative Agent may, on behalf
of the Lenders, appoint a successor Administrative Agent which shall be a
commercial bank with an office in New York, New York, having a combined capital
and surplus of at least $500,000,000 or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Company to the successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Company and such successor. After the Administrative Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Affiliates in respect of any actions taken or
omitted to be taken by any of them while it was acting as Administrative Agent
or sub-agent, as the case may be.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy, as follows:
(a) if to any Borrower, to ITT Industries, Inc., Red Oak Corporate
Park, 0 Xxxx Xxx Xxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, Attention of
Treasurer (Telecopy No. 914-696-2950);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, 0000 Xxxxxx Xxxxxx, Xxxxx 00, Xxxxxxx, XX 00000,
Attention of Xxxxxxx Xxxxx, (Fax No. (000) 000-0000), with a copy to
JPMorgan Chase Bank at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Re: ITT
Industries, Inc.; and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender became a party hereto.
42
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy to such party as provided in this Section or in accordance with the
latest unrevoked direction from such party given in accordance with this
Section.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
Lenders and shall survive the making by the Lenders of the Loans regardless of
any investigation made by the Lenders or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on any
Loan or any Fee or any other amount payable under this Agreement is outstanding
and unpaid or the Commitments have not been terminated. The provisions of
Sections 2.12, 2.14, 2.18 and 9.05 shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the invalidity or unenforceability
of any term or provision of this Agreement, or any investigation made by or on
behalf of the Administrative Agent or any Lender.
SECTION 9.03. Binding Effect. This Agreement shall become effective
on the Effective Date and when it shall have been executed by the Company and
the Administrative Agent and when the Administrative Agent shall have received
copies hereof (telecopied or otherwise) which, when taken together, bear the
signature of each Lender, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
except that the Borrowers shall not have the right to assign any rights
hereunder or any interest herein without the prior consent of all the Lenders.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any party that are contained in this Agreement
shall bind and inure to the benefit of its successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); provided,
however, that (i) except in the case of an assignment to a Lender or an
Affiliate of a Lender, the Administrative Agent and the Company must give their
prior written consent to such assignment (which consent, if required, shall not
be unreasonably withheld), provided that no consent of the Company shall be
required for an assignment to a Lender or an Affiliate of a Lender or, if an
Event of Default has occurred and is continuing, any other assignee, (ii) the
parties to each such assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, and a processing and recordation fee of
$3,500, (iii) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an
43
Administrative Questionnaire, and (iv) the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 and the amount of the
Commitment of such Lender remaining after such assignment shall not be less than
$5,000,000 or shall be zero. Upon acceptance and recording pursuant to paragraph
(e) of this Section, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least five Business
Days after the execution thereof, (A) the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement and
(B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto (but shall
continue to be entitled to the benefits of Sections 2.12, 2.14, 2.18 and 9.05,
as well as to any Fees accrued for its account hereunder and not yet paid)).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim, (ii)
except as set forth in (i) above, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto or the financial condition of the Borrowers or the performance or
observance by the Borrowers of any obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 5.03 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (v) such assignee will independently and
without reliance upon the Administrative Agent, such assigning Lender or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (vi) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at one of its offices in
The City of New York a copy of each Assignment and Acceptance delivered to it
and a
44
register for the recordation of the names and addresses of the Lenders, and the
Commitment of, and the principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive in the absence of manifest error and the
Borrowers, the Administrative Agent, and the Lenders may treat each person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by each party hereto, at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee together with an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and the written consent of the Company to such
assignment, the Administrative Agent shall (i) accept such Assignment and
Acceptance and (ii) record the information contained therein in the Register.
(f) Each Lender may sell participations to one or more banks or
other entities in all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided, however, that (i) such Lender's obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) each
participating bank or other entity shall be entitled to the benefit of the cost
protection provisions contained in Sections 2.12, 2.14 and 2.18 to the same
extent as if it were the selling Lender (and limited to the amount that could
have been claimed by the selling Lender had it continued to hold the interest of
such participating bank or other entity), except that all claims made pursuant
to such Sections shall be made through such selling Lender, and (iv) the
Borrowers, the Administrative Agent, and the other Lenders shall continue to
deal solely and directly with such selling Lender in connection with such
Lender's rights and obligations under this Agreement.
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender;
provided that, prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall execute an agreement for the benefit
of the Company whereby such assignee or participant shall agree (subject to
customary exceptions) to preserve the confidentiality of any such information.
(h) The Borrowers shall not assign or delegate any rights and duties
hereunder without the prior written consent of all Lenders.
(i) Any Lender may at any time pledge all or any portion of its
rights under this Agreement to a Federal Reserve Bank; provided that no such
pledge shall release any Lender from its obligations hereunder or substitute any
such Bank for such Lender as a party hereto. In order to facilitate such an
assignment to a Federal Reserve
45
Bank, each Borrower shall, at the request of the assigning Lender, duly execute
and deliver to the assigning Lender a promissory note or notes evidencing the
Loans made to such Borrower by the assigning Lender hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrowers agree to pay
all reasonable out-of-pocket expenses incurred by the Administrative Agent in
connection with entering into this Agreement or in connection with any
amendments, modifications or waivers of the provisions hereof, or incurred by
the Administrative Agent or any Lender in connection with the administration,
enforcement or protection of their rights in connection with this Agreement or
in connection with the Loans made, including the fees and disbursements of
counsel for the Administrative Agent or, in the case of enforcement, the
Lenders.
(b) The Borrowers agree to indemnify the Administrative Agent, each
Lender, each of their Affiliates and the directors, officers, employees and
agents of the foregoing (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against any Indemnitee arising out of (i) the
consummation of the transactions contemplated by this Agreement, (ii) the use of
the proceeds of the Loans or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether or not any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a final judgment of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) The provisions of this Section shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any investigation made by or on behalf of the
Administrative Agent or any Lender. All amounts due under this Section shall be
payable on written demand therefor.
SECTION 9.06. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.07. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent or any Lender in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Administrative Agent and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies which they would otherwise have. No waiver
of any provision of this Agreement or consent to any departure therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the
46
specific instance and for the purpose for which given. No notice or demand on
any Borrower or any Subsidiary in any case shall entitle such party to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders; provided that no such
agreement shall (i) increase the Commitment any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or reduce
the rate of interest thereon, or reduce any fees payable hereunder, without the
written consent of each Lender affected thereby, (iii) postpone the date of any
scheduled payment of the principal amount of any Loan, or any interest thereon,
or any fees payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.15 or
change any other provision of any Loan Document in a manner that would alter the
pro rata sharing of payments required thereby, without the written consent of
each Lender, (v) change section 9.04(h), (vi) limit or release the guarantee set
forth in Article VII, or (vii) change any of the provisions of this Section or
the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent. Notwithstanding the foregoing, any provision of this
Agreement may be amended by an agreement in writing entered into by the
Borrower, the Required Lenders and the Administrative Agent if (i) by the terms
of such agreement the Commitment of each Lender not consenting to the amendment
provided for therein shall terminate upon the effectiveness of such amendment
and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 9.08. Entire Agreement. This Agreement, the agreements
referenced in Section 2.05(b) and the letter agreement attached as Exhibit H
constitute the entire contract among the parties relative to the subject matter
hereof. Any previous agreement among the parties with respect to the subject
matter hereof is superseded by this Agreement. Nothing in this Agreement,
expressed or implied, is intended to confer upon any party other than the
parties hereto any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
SECTION 9.09. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
47
SECTION 9.10. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 9.03.
SECTION 9.11. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or obligations of the Company and any Borrowing Subsidiary now or
hereafter existing under any Loan Document held by such Lender, irrespective of
whether or not such Lender shall have made any demand thereunder and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Company and the Administrative Agent after such setoff and application made by
such Lender, but the failure to give such notice shall not affect the validity
of such setoff and application. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.13. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (A) EACH
BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT OR
FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, AND ANY
APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,
AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES
THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
SUBJECT TO THE FOREGOING AND TO PARAGRAPH (B) BELOW, NOTHING IN THIS AGREEMENT
SHALL AFFECT ANY RIGHT THAT ANY PARTY HERETO MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST ANY OTHER PARTY HERETO
IN THE COURTS OF ANY JURISDICTION.
48
(B) EACH BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT
MAY NOW OR THEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN ANY NEW YORK STATE
OR FEDERAL COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(C) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.01. NOTHING IN THIS
AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW.
SECTION 9.14. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATION IN THIS SECTION.
SECTION 9.15. Addition of Borrowing Subsidiaries. Each Borrowing
Subsidiary which shall deliver to the Administrative Agent a Borrowing
Subsidiary Agreement executed by such Subsidiary and the Company shall, upon
such delivery and without further act, become a party hereto and a Borrower
hereunder with the same effect as if it had been an original party to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
ITT INDUSTRIES, INC., as Borrower, ITT INDUSTRIES, INC., as Borrower,
by /s/ Xxxxxx X. Xxxxxxxx by /s/ Xxxxxx X. Xxxxx
--------------------------- --------------------------------------
Name: XXXXXX X. XXXXXXXX Name: XXXXXX X. XXXXX
Title: SENIOR VICE PRESIDENT Title: SENIOR VICE PRESIDENT-TREASURER
AND CHIEF FINANCIAL OFFICER AND DIRECTOR OF TAXES
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by /s/ Xxxx Ruyder
--------------------------------------
Name: XXXX RUYDER
Title: VICE PRESIDENT
THE BANK OF TOKYO-MITSUBISHI
LTD., NEW YORK BRANCH
by /s/ Xxxxx Xxx
--------------------------------------
Name: XXXXX XXX
Title: AUTHORIZED SIGNATORY
CITICORP NORTH AMERICA, INC.
by /s/ Xxxx Xxxxx
--------------------------------------
Name: XXXX XXXXX
Title: VICE PRESIDENT
000 Xxxxxxxxx Xx./00xx Xx.
Xxx Xxxx, XX 00000
Tel: 000-000-0000
DEUTSCHE BANK AG NEW YORK
BRANCH,
by /s/ Xxxxxxxxx Xxxxxxxx
--------------------------------------
Name: XXXXXXXXX XXXXXXXX
Title: DIRECTOR
by /s/ Xx. Xxxxxxx X. Xxxxx
--------------------------------------
Name: XX. XXXXXXX X. XXXXX
Title: DIRECTOR
[ITT Industries 364-Day Revolving Credit Facility Agreement]
SOCIETE GENERALE,
By /s/ Xxxxx Xxxxxxxxx
--------------------------------------
Name: XXXXX XXXXXXXXX
Title: VICE PRESIDENT
[ITT Industries 364-Day Revolving Credit Facility Agreement]
EXHIBIT A
[FORM OF] STANDBY BORROWING REQUEST
JPMorgan Chase Bank, as Administrative Agent
for the Lenders referred to below,
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: [ ] [Date]
Dear Ladies and Gentlemen:
The undersigned, _________________________________ (the "Borrower"),
refers to the 364-Day Revolving Credit Facility Agreement dated as of March 29,
2004 (as it may be amended, modified, extended or restated from time to time,
the "Credit Agreement"), among the Borrower, the Borrowing Subsidiaries parties
thereto, the Lenders named therein and JPMorgan Chase Bank, as Administrative
Agent. Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Credit Agreement. The Borrower hereby
gives you notice pursuant to Section 2.03 of the Credit Agreement that it
requests a Standby Borrowing under the Credit Agreement, and in that connection
sets forth below the terms on which such Standby Borrowing is requested to be
made:
(A) Date of Standby Borrowing
(which is a Business Day) _______________
(B) Principal amount of
Standby Borrowing (1) _______________
(C) Interest rate basis (2) _______________
(D) Interest Period and the
last day thereof (3) _______________
Upon acceptance of any or all of the Loans made by the Lenders in
response to this request, the Borrower shall be deemed to have represented and
warranted that the conditions to lending specified in Section 4.01(b) and (c) of
the Credit Agreement have been satisfied.
----------
(1) Not less than $20,000,000 (and in integral multiples of $5,000,000) or
greater than the Total Commitment then available.
(2) Eurocurrency Standby Loan or ABR Loan.
(3) Which shall be subject to the definition of "Interest Period" and end
not later than the Maturity Date.
2
Very truly yours,
[NAME OF BORROWER],
by
______________________________
Name:
Title: [Financial Officer]
[Standby Borrowing Request]
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Dated: ______, 20
Reference is made to the 364-Day Revolving Credit Facility Agreement
dated as of March 29, 2004 (as it may be amended, modified, extended or restated
from time to time, the "Credit Agreement"), among ITT Industries, Inc. (the
"Company"), the Borrowing Subsidiaries parties thereto, the lenders parties
thereto (the "Lenders") and JPMorgan Chase Bank, as Administrative Agent for the
Lenders. Terms defined in the Credit Agreement are used herein with the same
meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below, the interests
set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth below in the Commitment of the Assignor on the Effective
Date and the Standby Loans owing to the Assignor which are outstanding on the
Effective Date. Each of the Assignor and the Assignee hereby makes and agrees to
be bound by all the representations, warranties and agreements set forth in
Section 9.04 of the Credit Agreement, a copy of which has been received by each
such party. From and after the Effective Date, (i) the Assignee shall be a party
to and be bound by the provisions of the Credit Agreement and, to the extent of
the interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of
the interests assigned by this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms specified in Section
2.18(g) of the Credit Agreement, duly completed and executed by such Assignee,
(ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in a form supplied by the Administrative Agent and
(iii) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
2
Effective Date of Assignment
(may not be fewer than 5 Business
Days after the Date of Assignment):
Percentage Assigned of
Facility/Commitment (set
forth, to at least 8 decimals,
as a percentage of the
Facility and the aggregate
Commitments of all
Facility Principal Amount Assigned Lenders thereunder)
------------- ------------------------- ------------------------------
Commitment
Assigned: $ ___________ ___________ %
Standby Loans: $ ___________ ___________ %
The terms set forth and on the reverse Accepted:
side hereof are hereby agreed to:
ITT INDUSTRIES, INC.,
_____________________, by: __________________
as Assignor, Name:
Title:
by: __________________
Name:
Title:
_______________________,
as Assignee,
by: __________________
Name:
Title:
[Assignment and Acceptance]
EXHIBIT C
[FORM OF]
OPINION OF COUNSEL FOR
ITT INDUSTRIES, INC.(4)
To the Lenders set forth in
Schedule 2.01 to the 364-Day
Revolving Credit Facility Agreement dated as of
March 29, 2004, among ITT Industries, Inc.,
each Borrowing Subsidiary party thereto,
such Lenders and JPMorgan Chase Bank,
and as Administrative Agent for
such Lenders.
c/o JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
I am Vice President, Associate General Counsel and Secretary of ITT
Industries, Inc., an Indiana corporation (the "Company"), and, as such, am
generally familiar with its business and affairs. I am also familiar with the
364-Day Revolving Credit Facility Agreement dated as of March 29, 2004 (the
"Agreement"), among the Company, each Borrowing Subsidiary party thereto, the
Lenders listed in Schedule 2.01 thereto (the "Lenders") and JPMorgan Chase Bank,
as Administrative Agent for such Lenders. Unless the context requires otherwise,
capitalized words not defined herein shall have the meaning given in the
Agreement.
Based upon the foregoing, I am of the opinion that:
1. The Company (i) is a corporation duly organized and validly existing
under the laws of the State of Indiana, (ii) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted, (iii) is qualified to do business in every jurisdiction within the
United States where such qualification is required, except where the failure so
to qualify would not result in a Material Adverse Effect on the Company, and
(iv) has all requisite corporate power and authority to execute, deliver and
perform its obligations under the Agreement and to borrow funds thereunder.
----------
(4) Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the 364-Day Revolving Credit Facility
Agreement (the "Agreement") dated as of March 29, 2004, among ITT Industries,
Inc., the lenders listed in Schedule 2.01 thereto, and JPMorgan Chase Bank, as
Administrative Agent.
2
2. The execution, delivery and performance by the Company of the Agreement
and the borrowings of the Company thereunder (collectively, the "Transactions")
(i) have been duly authorized by all requisite corporate action and (ii) will
not (a) violate (1) any provision of law, statute, rule or regulation (including
without limitation, the Margin Regulations), or the articles of incorporation or
other constitutive documents or by-laws of the Company, (2) any order of any
governmental authority or (3) any provision of any indenture, agreement or other
instrument to which the Company is a party or by which it or its property is or
may be bound, (b) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or (c) result in the creation or
imposition of any lien upon any property or assets of the Company.
3. The Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject as to the
enforceability of rights and remedies to any applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws of general
application relating to or affecting the enforcement of creditors' rights from
time to time in effect.
4. No action, consent or approval of, registration or filing with, or any
other action by, any government authority is or will be required in connection
with the Transactions, except such as have been made or obtained and are in full
force and effect.
5. Neither the Company nor any of its subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
I am a member of the bar of the State of New York and express no opinion
as to any matter relating to any law other than the law of the State of New
York, the Indiana Business Corporation Law and the Federal law of the United
States
This opinion is rendered to you in connection with the above described
transactions and may not be relied upon by you for any other purpose, or relied
upon by, or furnished to, any other person, firm or corporation without my prior
written consent.
Very truly yours,
Xxxxxxxx X. Xxxxxx
Vice President,
Associate General Counsel and Secretary
[Opinion of Counsel for ITT Industries, Inc.]
EXHIBIT D
BORROWING SUBSIDIARY AGREEMENT dated as of [ ], [ ],
among ITT INDUSTRIES, INC., an Indiana corporation (the
"Company"), [Name of Subsidiary], a [ ] corporation ("the
Subsidiary"), and JPMORGAN CHASE BANK, as administrative agent
(the "Administrative Agent") for the lenders (the "Lenders")
party to the 364-Day Revolving Credit Facility Agreement dated
as of March 29, 2004, (as it may be amended, modified,
extended or restated from time to time, the "Agreement"),
among the Company, the Borrowing Subsidiaries party hereto,
the Administrative Agent and the Lenders.
Terms defined in the Agreement are used herein with the same
meaning.
Under the Agreement, the Lenders have agreed, upon the terms and
subject to the conditions therein set forth, to make revolving credit loans to
the Company and to Subsidiaries (as defined in the Agreement) of the Company
which execute and deliver to the Administrative Agent Borrowing Subsidiary
Agreements in the form of this Borrowing Subsidiary Agreement. The Company
represents that the Subsidiary is a subsidiary (as so defined) of the Company
and that the guarantee of the Company contained in Article VII of the Agreement
applies to the obligations of the Subsidiary. In consideration of being
permitted to borrow under the Agreement upon the terms and subject to the
conditions set forth therein, the Subsidiary agrees that from and after the date
of this Borrowing Subsidiary Agreement it will be, and will be liable for the
observance and performance of all the obligations of, a Borrowing Subsidiary
under the Agreement, as the same may be amended from time to time, to the same
extent as if it had been one of the original parties to the Agreement and that
it will furnish to the Administrative Agent and the Lenders copies of its
financial statements on an annual basis.
2
IN WITNESS WHEREOF, the Company and the Subsidiary have caused this
Borrowing Subsidiary Agreement to be duly executed by their authorized officers
as of the date first appearing above.
ITT INDUSTRIES, INC.,
by
_____________________________
Name:
Title:
[NAME OF SUBSIDIARY],
by
____________________________
Name:
Title:
Accepted as of the date
first appearing above:
JPMORGAN CHASE BANK, as Administrative
Agent,
by
_____________________________
Name:
Title:
[Borrowing Subsidiary Agreement]
[ITT INDUSTRIES LOGO]
XXXXXXXX X. XXXXXX 0 Xxxx Xxx Xxx Xxxx
Vice President,Secretary and Xxxxx Xxxxxx, XX 00000
Associate General Counsel tel 914 641.2067
fax 914 696.2970
Xxxxxxx@xxx.xxx
ITT INDUSTRIES, INC.
****
Secretary's Certificate and
Certificate of Authority, Incumbency and Specimen Signatures
****
I, Xxxxxxxx X. Xxxxxx, Do Hereby Certify:
That Attachment A is a complete, true and correct copy of certain resolutions of
the Board of Directors of ITT Industries, Inc., a corporation duly organized and
existing under the laws of the state of Indiana; which resolution was duly
adopted at a duly called meeting of said Board, held on March 9, 2004, a quorum
being present, and is set forth in the minutes and records of this Corporation,
and said resolutions authorize the execution, delivery and performance of the
Agreement and the Borrowings under the Agreement and such resolutions have not
been modified, rescinded or amended and are in full force and effect;
That the articles of incorporation for the Corporation have not been amended
since the date of the last amendment thereto shown on the restated articles of
incorporation and since the certificate of existence furnished in connection
with the Agreement; and
That attached hereto is a true and complete copy of the by-laws of the Company
in effect on the Effective Date and at all times prior to the date of such
resolutions described in Attachment A; and
That pursuant to such resolutions in Attachment A the individuals listed below
are officers of the Corporation, each duly elected, qualified and acting as such
officers and fully authorized and empowered to execute this Agreement or any
other document delivered in connection herewith on behalf of ITT Industries,
Inc.
Name Title Signature
Xxxxx X. Xxxxxxxx Chairman, President and /s/ Xxxxx X. Xxxxxxxx
Chief Executive Officer ----------------------
Xxxxxx X. Senior Vice President, /s/ Xxxxxx X. Xxxxxxxx
Xxxxxxxx Chief Financial Officer ----------------------
Xxxxxx X. Xxxxx Senior Vice President and /s/ Xxxxxx X. Xxxxx
Treasurer ----------------------
Xxxxxxx Xxxxx Assistant Treasurer /s/ Xxxxxxx Xxxxx
----------------------
I further certify that the specimen signatures set forth above next to each name
are the true and genuine signatures of such persons.
In Witness Whereof, I have hereunto subscribed my name and affixed
the seal of the said corporation, this 29th Day of March 2004.
/s/ Xxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxx
Vice President, Associate General
Counsel and Secretary
Certificate of Incumbency of Secretary of ITT Industries, Inc.
Xxxxxxxx X. Xxxxxx, whose name, title and signature is set forth above, is an
officer of the Corporation and she is duly elected, qualified and authorized to
act as such officer and fully authorized and empowered to execute this
Secretary's Certificate and the signature appearing above is the genuine
signature of Xxxxxxxx X. Xxxxxx.
Attested:
Xxxxxxx X. Xxxxx , Assistant Secretary
I, ------------------- the ------------------------
(Name) (Assistant Secretary)
In Witness Whereof, I have hereunto subscribed my name and affixed the seal of
the said corporation, this 29th day of March, 2004.
/s/ Xxxxxxx X. Xxxxx
------------------------
Xxxxxxx X. Xxxxx
Name
Assistant Secretary
Title
SCHEDULE 2.01
Contact Person
Name and Address of Lender and Telecopy Number Commitment
-------------------------- ------------------- -------------
JPMorgan Chase Bank $ 100,000,000
Citicorp North America, Inc. $ 100,000,000
Deutsche Bank AG New York
Branch $ 100,000,000
The Bank of Tokyo-Mitsubishi
Ltd. New York Branch $ 50,000,000
Societe Generale $ 50,000,000
TOTAL COMMITMENT -------------
$ 400,000,000
SCHEDULE 5.10
ITT INDUSTRIES, INC.
LIENS ON PRINCIPAL PROPERTIES
None.
[ITT INDUSTRIES LOGO]
0 Xxxx Xxx Xxx Xxxx
Xxxxx Xxxxxx, XX 00000
XXXXXXXX X. XXXXXX tel 914 641.2067
Vice President, Secretary and fax 914 696.2970
Associate General Counsel xxxxxxx@xxx.xxx
March 29, 2004
To the Lenders set forth in
Schedule 2.01 to the 364-Day
Revolving Credit Facility Agreement dated as of
March 29,2004, among ITT Industries, Inc.,
each Borrowing Subsidiary party thereto,
such Lenders and JPMorgan Chase Bank,
and as Administrative Agent for
such Lenders.
c/o JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
I am Vice President, Associate General Counsel and Secretary of ITT
Industries, Inc., an Indiana corporation (the "Company"), and, as such, am
generally familiar with its business and affairs. I am also familiar with the
364-Day Revolving Credit Facility Agreement dated as of March 29,2004 (the
"Agreement"), among the Company, each Borrowing Subsidiary party thereto, the
Lenders listed in Schedule 2.01 thereto (the "Lenders") and JPMorgan Chase Bank,
as Administrative Agent for such Lenders. Unless the context requires otherwise,
capitalized words not defined herein shall have the meaning given in the
Agreement.
Based upon the foregoing, I am of the opinion that:
1. The Company (i) is a corporation duly organized and validly existing
under the laws of the State of Indiana, (ii) has all requisite power and
authority to own its property and assets and to carry on its business as now
conducted, (iii) is qualified to do business in every jurisdiction within the
United States where such qualification is required, except where the failure so
to qualify would not result in a Material Adverse Effect on the Company, and
(iv) has all requisite corporate power and authority to execute, deliver and
per form its obligations under the Agreement and to borrow funds thereunder.
- 2 -
2. The execution, delivery and performance by the Company of the Agreement
and the borrowings of the Company thereunder (collectively, the "Transactions")
(i) have been duly authorized by all requisite corporate action and (ii) will
not (a) violate (1) any provision of law, statute, rule or regulation (including
without limitation, the Margin Regulations), or the articles of incorporation or
other constitutive documents or by-laws of the Company, (2) any order of any
governmental authority or (3) any provision of any indenture, agreement or other
instrument to which the Company is a party or by which it or its property is or
may be bound, (b) be in conflict with, result in a breach of or constitute
(alone or with notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or (c)result in the creation or
imposition of any lien upon any property or assets of the Company.
3. The Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject as to the
enforceability of rights and remedies to any applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws of general
application relating to or affecting the enforcement of creditors' rights from
time to time in effect.
4. No action, consent or approval of, registration or filing with, or any
other action by, any government authority is or will be required in connection
with the Transactions, except such as have been made or obtained and are in full
force and effect.
5. Neither the Company nor any of its subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
I am a member of the bar of the State of New York and express no opinion
as to any matter relating to any law other than the law of the State of New
York, the Indiana Business Corporation Law and the Federal law of the United
States
This opinion is rendered to you in connection with the above described
transactions and may not be relied upon by you for any other purpose, or relied
upon by, or furnished to, any other person, firm or corporation without my prior
written consent.
Very truly yours,
/s/ Xxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx
Vice President,
Associate General Counsel
and Secretary
[ITT INDUSTRIES LOGO]
ITT INDUSTRIES, INC.
0 Xxxx Xxx Xxx Xxxx
Xxxxx Xxxxxx, XX 00000
tel 000 000-0000
fax 000 000-0000
ITT INDUSTRIES, INC.
Officer's Certificate
I, the undersigned, [Financial Officer] of ITT Industries, Inc., an
Indiana corporation (the "Company"), DO HEREBY CERTIFY that:
1. This Certificate is being furnished pursuant to Section 4.02(c)
of the Credit Agreement, dated as of March 29, 2004, among the Company, each
Borrowing Subsidiary party hereto, the Lenders listed therein and XX Xxxxxx
Xxxxx Bank, as Administrative Agent (such agreement, as in effect on the date of
this Certificate, being herein called the "Credit Agreement"). Unless otherwise
defined herein capitalized terms used in this Certificate have the respective
meaning assigned to those terms in the Credit Agreement.
2. On the date hereof, the representations and warranties of the
Company set forth in Article III of the Credit Agreement are true and correct in
all material respects on and as of the date of this Certificate with the same
effect as though such representations and warranties had been made on and as of
the date of this Certificate, except to the extent that such representations and
warranties expressly relate to an earlier date.
3. On the date hereof, no Event of Default or Default has occurred
and is continuing.
IN WITNESS WHEREOF, I have hereunto set my hand this 29th day of
March, 2004.
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx,
Senior VP - Treasurer and
Director of Taxes
STATE OF INDIANA
OFFICE OF THE SECRETARY OF STATE
CERTIFICATE OF EXISTENCE
To Whom These Presents Come, Greeting:
I, XXXX XXXXXX, Secretary of State of Indiana, do hereby certify that I am, by
virtue of the laws of the State of Indiana, the custodian of the corporate
records and the proper official to execute this certificate.
I further certify that records of this office disclose that
ITT INDUSTRIES, INC.
duly filed the requisite documents to commence business activities under the
laws of the State of Indiana on September 05, 1995, and was in existence or
authorized to transact business in the State of Indiana on March 25, 2004.
I further certify this For-Profit Domestic Corporation has filed its most recent
report required by Indiana law with the Secretary of State, or is not yet
required to file such report, and that no notice of withdrawal, dissolution or
expiration has been filed or taken place.
In Witness Whereof, I have
hereunto set my hand and
affixed the seal of the State
[SEAL XX XXX XXXXX XX XXXXXXX 0000] of Indiana, at the City of
Indianapolis, this Twenty-Fifth
Day of March, 2004.
/s/ Xxxx Xxxxxx
XXXX XXXXXX, Secretary of State
STATE OF INDIANA
OFFICE OF THE SECRETARY OF STATE
CERTIFICATE OF INCORPORATION
OF
ITT INDIANA, INC.
I, XXX XXXX XXXXXX, Secretary of State of Indiana, hereby certify that Articles
of Incorporation of the above corporation have been presented to me at my office
accompanied by the fees prescribed by law; that I have found such Articles
conform to law; all as prescribed by the provisions of the Indiana Business
Corporation Law, as amended.
NOW, THEREFORE, I hereby issue to such corporation this Certificate of
Incorporation, and further certify that its corporate existence will begin
September 05, 1995.
In Witness Whereof, I have hereunto set my hand and
affixed the seal of the State of Indiana, at the City of
Indianapolis, this Fifth day of September, 1995.
/s/ OGS
------------------------
Deputy
APPROVED
AND
FILED
IND. SECRETARY
OF STATE
ARTICLES OF INCORPORATION
of
ITT INDIANA, INC.
The undersigned, for the purpose of forming a corporation, pursuant
to and by virtue of the Indiana Business Corporation Law, hereby adopts and
acknowledges the following Articles of Incorporation.
ARTICLE FIRST
The name of the corporation is ITT Indiana, Inc. (the
"Corporation").
ARTICLE SECOND
The address of the registered office of the Corporation in the State
of Indiana is Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000.
The name of the registered agent of the Corporation at such address is The
Corporation Trust Company.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Indiana Business
Corporation Law.
ARTICLE FOURTH
(a) The aggregate number of shares of stock that the Corporation
shall have authority to issue is 250,000,000 shares, consisting of 200,000,000
shares designated "Common Stock" and 50,000,000 shares designated "Preferred
Stock". The shares of Common Stock shall have a par value of $1 per share, and
the shares of Preferred Stock shall not have any par or stated value, except
that, solely for the purpose of any statute or regulation imposing any fee or
tax based upon the capitalization of the Corporation, the shares of Preferred
Stock shall be deemed to have a par value of $.01 per share.
2
(b) The Board of Directors of the Corporation shall have the full
authority permitted by law, at any time and from time to time, to divide the
authorized and unissued shares of Preferred Stock into classes or series, or
both, and to determine the following provisions, designations, powers,
preferences and relative, participating, optional and other special rights and
the qualifications, limitations or restrictions thereof for shares of any such
class or series of Preferred Stock:
(1) the designation of such class or series, the number of shares to
constitute such class or series and the stated or liquidation value
thereof;
(2) whether the shares of such class or series shall have voting
rights, in addition to any voting rights provided by law, and, if so, the
terms of such voting rights;
(3) the dividends, if any, payable on such class or series, whether
any such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be payable, the
preference or relation which such dividends shall bear to the dividends
payable on any shares of stock of any other class or any other series of
the same class;
(4) whether the shares of such class or series shall be subject to
redemption at the election of the Corporation and/or the holders of such
class or series and, if so, the times, price and other conditions of such
redemption, including securities or other property payable upon any such
redemption, if any;
(5) the amount or amounts, if any, payable upon shares of such class
or series upon, and the rights of the holders of such class or series in,
the voluntary or involuntary liquidation, dissolution or winding up, or
any distribution of the assets, of the Corporation; provided that in no
event shall the amount or amounts, if any, exceed $100 per share plus
accrued dividends in the case of involuntary liquidation, dissolution or
winding up;
(6) whether the shares of such class or series shall be subject to
the operation of a retirement or sinking fund and, if so, the extent to
and manner in which any such retirement or sinking fund shall be
3
applied to the purchase or redemption of the shares of such class or
series for retirement or other corporate purposes and the terms and
provisions relative to the operation thereof;
(7) whether the shares of such class or series shall be convertible
into, or exchangeable for, shares of stock of any other class or any other
series of the same class or any securities, whether or not issued by the
Corporation, and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same, and
any other terms and conditions of conversion or exchange;
(8) the limitations and restrictions, if any, to be effective while
any shares of such class or series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or any other series of the same class;
(9) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issuance of any additional
shares of stock, including additional shares of such class or series or of
any other series of the same class or of any other class;
(10) the ranking (be it pari passu, junior or senior) of each class
or series vis-a-vis any other class or series of any class of Preferred
Stock as to the payment of dividends, the distribution of assets and all
other matters; and
(11) any other powers, preferences and relative, participating,
optional and other special rights and any qualifications, limitations or
restrictions thereof, insofar as they are not inconsistent with the
provisions of these Articles of Incorporation, to the full extent
permitted in accordance with the laws of the State of Indiana.
(c) Such divisions and determinations may be accomplished by an
amendment to this ARTICLE FOURTH, which amendment may be made solely by action
of the Board of Directors, which shall have the full authority permitted by law
to make such divisions and determinations.
4
(d) The powers, preferences and relative, participating, optional
and other special rights of each class or series of Preferred Stock and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other classes or series at any time outstanding; provided
that each series of a class is given a distinguishing designation and that all
shares of a series have powers, preferences and relative, participating,
optional and other special rights and the qualifications, limitations or
restrictions thereof identical with those of other shares of the same series
and, except to the extent otherwise provided in the description of the series,
with those other series of the same class.
(e) Holders of shares of Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, out of funds
legally available for the payment thereof, dividends at the rates fixed by the
Board of Directors for the respective series before any dividends shall be
declared and paid, or set aside for payment, on shares of Common Stock with
respect to the same dividend period. Nothing in this ARTICLE FOURTH shall limit
the power of the Board of Directors to create a series of Preferred Stock with
dividends the rate of which is calculated by reference to, and the payment of
which is concurrent with, dividends on shares of Common Stock.
(f) In the event of the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, holders of shares of each series
of Preferred Stock will be entitled to receive the amount fixed for such series
upon any such event (not in excess of $100 per share in the case of involuntary
liquidation, dissolution or winding up) plus, in the case of any series on which
dividends will have been determined by the Board of Directors to be cumulative,
an amount equal to all dividends accumulated and unpaid thereon to the date of
final distribution whether or not earned or declared before any distribution
shall be paid, or set aside for payment, to holders of Common Stock. If the
assets of the Corporation are not sufficient to pay such amounts in full,
holders of all shares of Preferred Stock will participate in the distribution of
assets ratably in proportion to the full amounts to which they are entitled or
in such order or priority, if any, as will have been fixed in the resolution or
resolutions providing for the issue of the series of Preferred Stock. Neither
the merger nor consolidation of the Corporation into or with any other
corporation, nor a sale, transfer or lease of all or part of
5
its assets, will be deemed a liquidation, dissolution or winding up of the
Corporation within the meaning of this paragraph except to the extent
specifically provided for herein. Nothing in this ARTICLE FOURTH shall limit the
power of the Board of Directors to create a series of Preferred Stock for which
the amount to be distributed upon any liquidation, dissolution or winding up of
the Corporation is calculated by reference to, and the payment of which is
concurrent with, the amount to be distributed to the holders of shares of Common
Stock.
(g) The Corporation, at the option of the Board of Directors, may
redeem all or part of the shares of any series of Preferred Stock on the terms
and conditions fixed for such series.
(h) Except as otherwise required by law, as otherwise provided
herein or as otherwise determined by the Board of Directors as to the shares of
any series of Preferred Stock prior to the issuance of any such shares, the
holders of Preferred Stock shall have no voting rights and shall not be entitled
to any notice of meetings of shareholders.
(i) Each holder of shares of Common Stock shall be entitled to one
vote for each share of Common Stock held of record on all matters on which the
holders of shares of Common Stock are entitled to vote. Subject to the
provisions of applicable law and any certificate of designation providing for
the issuance of any series of Preferred Stock, the holders of outstanding shares
of Common Stock shall have and possess the exclusive right to notice of
shareholders' meetings and the exclusive power to vote. No shareholder will be
permitted to cumulate votes at any election of directors.
(j) Subject to all the rights of the Preferred Stock, the holders of
the Common Stock shall be entitled to receive, when, as and if declared by the
Board of Directors, out of funds legally available for the payment thereof,
dividends payable in cash, stock or otherwise. Upon any liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, and after
the holders of the Preferred Stock of each series shall have been paid in full
in cash the amounts to which they respectively shall be entitled or a sum
sufficient for such payment in full shall have been set aside, the remaining net
assets of the Corporation shall be distributed pro rata to the holders of
6
the Common Stock in accordance with their respective rights and interests, to
the exclusion of the holders of the Preferred Stock.
ARTICLE FIFTH
(a) Special meetings of shareholders of the Corporation may be
called by the Chairman of the Board of Directors or by a majority vote of the
entire Board of Directors.
(b) Shareholders of the Corporation shall not have any preemptive
rights to subscribe for additional issues of stock of the Corporation except as
may be agreed from time to time by the Corporation and any such shareholder.
(c) Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of Preferred Stock issued by the Corporation, if any,
shall have the right, voting separately by class or series, to elect directors
at an annual or special meeting of shareholders, an election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the terms of the applicable resolution or resolutions of the Board of
Directors adopted pursuant to ARTICLE FOURTH of these Articles of Incorporation.
ARTICLE SIXTH
To the fullest extent permitted by applicable law as then in effect,
no director or officer shall be personally liable to the Corporation or any of
its shareholders for damages for breach of fiduciary duty as a director or
officer, except for liability (a) for breach of duty if such breach constitutes
wilful misconduct or recklessness or (b) for the payment of distributions to
shareholders in violation of Section 23-1-28-3 of the Indiana Business
Corporation Law. Any repeal or modification of this ARTICLE SIXTH by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director or officer of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
7
ARTICLE SEVENTH
The holders of the capital stock of the Corporation shall not be
personally liable for the payment of the Corporation's debts and the private
property of the holders of the capital stock of the Corporation shall not be
subject to the payment of debts of the Corporation to any extent whatsoever.
ARTICLE EIGHTH
Subject to any express provision of the laws of the State of
Indiana, these Articles of Incorporation or the By-laws of the Corporation, the
By-laws of the Corporation may from time to time be supplemented, amended or
repealed, or new By-laws may be adopted, by the Board of Directors at any
regular or special meeting of the Board of Directors, if such supplement,
amendment, repeal or adoption is approved by a majority of the entire Board of
Directors. Subject to any express provision of the laws of the State of Indiana,
these Articles of Incorporation or the By-laws of the Corporation, the By-laws
of the Corporation may from time to time be supplemented, amended or repealed,
or new By-laws may be adopted, by the shareholders at any regular or special
meeting of the shareholders at which a quorum is present, if such supplement,
amendment, repeal or adoption is approved by the affirmative vote of the holders
of at least a majority of the voting power of all outstanding shares of stock of
the Corporation entitled to vote generally in an election of directors.
ARTICLE NINTH
The Corporation reserves the right to supplement, amend or repeal
any provision contained in these Articles of Incorporation, in the manner now or
hereafter prescribed by the laws of the State of Indiana and all rights
conferred on shareholders herein are granted subject to this reservation.
8
ARTICLE TENTH
The name and address of the incorporator signing these Articles of
Incorporation is:
Name Address
Xxxxxx X. Xxxxxxx, Xx. 000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
IN WITNESS WHEREOF, the undersigned, being the sole incorporator of
said Corporation, executes these Articles of Incorporation and verifies, subject
to penalties of perjury, that the statements contained herein are true on this
1st day of September 1995.
/s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Sole Incorporator
STATE OF INDIANA
OFFICE OF THE SECRETARY OF STATE
ARTICLES OF AMENDMENT
To Whom These Presents Come, Greeting:
WHEREAS, there has been presented to me at this office, Articles of Amendment
for:
ITT INDIANA, INC.
and said Articles of Amendment have been prepared and signed in accordance with
the provisions of the Indiana Business Corporation Law, as amended.
NOW, THEREFORE, I, XXX XXXX CILROY, Secretary of State of Indiana, hereby
certify that I have this day filed said articles in this office.
The effective date of these Articles of Amendment is November 29, 1995.
In Witness Whereof, I have hereunto set my hand and
affixed the seal of the State of Indiana, at the City of
Indianapolis, this Twenty-ninth day of November, 1995.
/s/ OGS
-------------------------------
Deputy
APPROVED
AND
FILED
IND. SECRETARY
OF STATE
ARTICLES OF AMENDMENT SETTING FORTH
THE DESIGNATIONS, VOTING POWERS, PREFERENCES AND
RELATIVE, PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS
AND QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF
SERIES A PARTICIPATING CUMULATIVE PREFERRED STOCK
OF ITT INDIANA, INC.
Pursuant to Section 23-1-25-1 and Section 23-1-25-2 of the Business
Corporation Law of the State of Indiana, ITT Indiana, Inc., to be renamed ITT
Industries, Inc. (the "Corporation"), a corporation organized and existing under
the Business Corporation Law of the State of Indiana, in accordance with the
provisions of Section 23-1-18-1 and Section 23-1-38-6 thereof, DOES HEREBY
CERTIFY:
That, pursuant to the authority conferred upon the Board of
Directors of the Corporation by ARTICLE FOURTH of the Articles of Incorporation
of the Corporation (the "Articles of Incorporation"), the Board of Directors of
the Corporation on October 10, 1995, adopted the following resolution amending
the Articles of Incorporation to create a series of Preferred Stock designated
as Series A Participating Cumulative Preferred Stock:
RESOLVED that pursuant to the authority vested in the Board of
Directors of the Corporation in ARTICLE FOURTH of the Articles of
Incorporation, the designations, voting powers, preferences and relative,
participating, optional and other special rights and qualifications,
limitations or restrictions of a series of Preferred Stock be, and they
hereby are, fixed as follows:
SECTION 1. Designation and Number of Shares. The shares of such
series shall be designated as "Series A Participating Cumulative Preferred
Stock" (the "Series A Preferred Stock"), without par value. The number of
shares initially constituting the Series A Preferred Stock shall be 300,000;
provided, however, that, if more than a total of 300,000 shares of Series A
Preferred Stock shall be issuable upon the exercise of Rights (the "Rights")
issued pursuant to that Rights Agreement between the Corporation and The
Bank of New York, a New York banking corporation, as Rights Agent (the "Rights
Agreement"), the Board of Directors of the Corporation, pursuant to Section
23-1-25-2(d) of the Business Corporation Law of the State of Indiana, shall
direct by resolution or resolutions that articles of amendment be
properly executed and delivered to the
CERTIFICATES
The undersigned, Assistant Secretary of ITT CORPORATION, a Delaware
corporation, hereby certifies, pursuant to Section 252(c) of the General
Corporation Law of the State of Delaware, that the foregoing Agreement and Plan
of Merger to which this Certificate is attached, which has been duly signed on
behalf of ITT CORPORATION by its Vice President and attested to by its Assistant
Secretary, was duly submitted to the stockholders of ITT CORPORATION at a
meeting thereof called for the purpose of considering and acting upon said
Agreement and Plan of Merger, held after due notice on September 21, 1995, and
at said meeting said Agreement and Plan of Merger was adopted by the
stockholders of ITT CORPORATION in accordance with the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
27H day of November, 1995.
/s/ Xxxxxx X. Xxxxxx
-------------------------
Assistant Secretary
The undersigned, Assistant Secretary of ITT INDIANA, INC., an Indiana
corporation, hereby certifies, pursuant to Section 252(c) of the General
Corporation Law of the State of Delaware, that the foregoing Agreement and Plan
of Merger to which this Certificate is attached, which has been duly signed on
behalf of ITT INDIANA, INC. by its Vice President and attested to by its
Assistant Secretary, was duly submitted to the sole stockholder of ITT INDIANA,
INC. at a meeting thereof called for the purpose of considering and acting upon
said Agreement and Plan of Merger, held on October 10, 1995, and that at said
meeting said Agreement and Plan of Merger was adopted by the sole stockholder of
ITT INDIANA, INC. in accordance with the Business Corporation Law of the State
of Indiana.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
27TH day of November, 1995.
/s/ Xxxxxx X. Xxxxxx Xx.
-----------------------------
Assistant Secretary
5
APPROVED
AND
FILED
IND. SECRETARY
OF STATE
ARTICLES OF RESTATEMENT
ITT Industries, Inc., a corporation organized and existing under the laws
of the State of Indiana (the "Corporation"), hereby certifies as follows:
ITT Industries, Inc. was originally incorporated under the name ITT
Indiana, Inc. pursuant to its original Articles of Incorporation filed with the
Secretary of State for the State of Indiana on September 5, 1995. Effective
December 20, 1995, ITT Corporation, a Delaware corporation, was merged with and
into the Corporation, and the name of the Corporation was changed to ITT
Industries, Inc. The Restated Articles of Incorporation set forth below only
restate and integrate the provisions of the Corporation's Articles of
Incorporation as heretofore amended or supplemented, and there is no discrepancy
between those provisions and the provisions of these Restated Articles of
Incorporation. This restatement does not contain any amendment to the Articles
of Incorporation of the Corporation requiring shareholder approval. The text of
the Articles of Incorporation as amended or supplemented heretofore is hereby
restated to read as herein set forth in full:
RESTATED ARTICLES OF INCORPORATION
OF
ITT INDUSTRIES, INC.
ARTICLE FIRST
The name of the corporation is ITT Industries, Inc. (the "Corporation").
ARTICLE SECOND
The address of the registered office of the Corporation in the State of
Indiana is Xxx Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxx 00000.
The name of the registered agent of the Corporation at such address is The
Corporation Trust Company.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Indiana Business Corporation
Law.
ARTICLE FOURTH
(a) The aggregate number of shares of stock that the Corporation shall
have authority to issue is 250,000,000 shares, consisting of 200,000,000
shares designated "Common Stock" and 50,000,000 shares designated "Preferred
Stock". The shares of Common Stock shall have a par value of $1 per share, and
the shares of Preferred Stock shall not have any par or stated value, except
that, solely for the purpose of any statute or regulation imposing any fee or
tax based upon the capitalization of the Corporation, the shares of Preferred
Stock shall be deemed to have a par value of $.01 per share.
(b) The Board of Directors of the Corporation shall have the full
authority permitted by law, at any time and from time to time, to divide the
authorized and unissued shares of Preferred Stock into classes or series, or
both, and to determine the following provisions, designations, powers,
preferences and relative, participating, optional and other special rights and
the qualifications, limitations or restrictions thereof for shares of any such
class or series of Preferred Stock:
(1) the designation of such class or series, the number of shares to
constitute such class or series and the stated or liquidation value
thereof;
(2) whether the shares of such class or series shall have voting
rights, in addition to any voting rights provided by law, and, if so, the
terms of such voting rights;
(3) the dividends, if any, payable on such class or series, whether
any such dividends shall be cumulative, and, if so, from what dates, the
conditions and dates upon which such dividends shall be
1
payable, the preference or relation which such dividends shall bear to the
dividends payable on any shares of stock of any other class or any other
series of the same class;
(4) whether the shares of such class or series shall be subject to
redemption at the election of the Corporation and/or the holders of such
class or series and, if so, the times, price and other conditions of such
redemption, including securities or other property payable upon any such
redemption, if any;
(5) the amount or amounts, if any, payable upon shares of such class
or series upon, and the rights of the holders of such class or series in,
the voluntary or involuntary liquidation, dissolution or winding up, or
any distribution of the assets, of the Corporation; provided that in no
event shall the amount or amounts, if any, exceed $100 per share plus
accrued dividends in the case of involuntary liquidation, dissolution or
winding up;
(6) whether the shares of such class or series shall be subject to
the operation of a retirement or sinking fund and, if so, the extent to
and manner in which any such retirement or sinking fund shall be applied
to the purchase or redemption of the shares of such class or series for
retirement or other corporate purposes and the terms and provisions
relative to the operation thereof;
(7) whether the shares of such class or series shall be convertible
into, or exchangeable for, shares of stock of any other class or any other
series of the same class or any securities, whether or not issued by the
Corporation, and, if so, the price or prices or the rate or rates of
conversion or exchange and the method, if any, of adjusting the same, and
any other terms and conditions of conversion or exchange;
(8) the limitations and restrictions, if any, to be effective while
any shares of such class or series are outstanding upon the payment of
dividends or the making of other distributions on, and upon the purchase,
redemption or other acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or any other series of the same class;
(9) the conditions or restrictions, if any, upon the creation of
indebtedness of the Corporation or upon the issuance of any additional
shares of stock, including additional shares of such class or series or of
any other series of the same class or of any other class;
(10) the ranking (be it pari passu, junior or senior) of each class
or series vis-a-vis any other class or series of any class of Preferred
Stock as to the payment of dividends, the distribution of assets and all
other matters; and
(11) any other powers, preferences and relative, participating,
optional and other special rights and any qualifications, limitations or
restrictions thereof, insofar as they are not inconsistent with the
provisions of these Articles of Incorporation, to the full extent
permitted in accordance with the laws of the State of Indiana.
(c) Such divisions and determinations may be accomplished by an amendment
to this ARTICLE FOURTH, which amendment may be made solely by action of the
Board of Directors, which shall have the full authority permitted by law to make
such divisions and determinations.
(d) The powers, preferences and relative, participating, optional and
other special rights of each class or series of Preferred Stock and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other classes or series at any time outstanding; provided
that each series of a class is given a distinguishing designation and that all
shares of a series have powers, preferences and relative, participating,
optional and other special rights and the qualifications, limitations or
restrictions thereof identical with those of other shares of the same series
and, except to the extent otherwise provided in the description of the series,
with those other series of the same class.
(e) Holders of shares of Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors, out of funds legally
available for the payment thereof, dividends at the rates fixed by the Board of
Directors for the respective series before any dividends shall be declared and
paid, or set
2
aside for payment, on shares of Common Stock with respect to the same dividend
period. Nothing in this ARTICLE FOURTH shall limit the power of the Board of
Directors to create a series of Preferred Stock with dividends the rate of which
is calculated by reference to, and the payment of which is concurrent with,
dividends on shares of Common Stock.
(f) In the event of the voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, holders of shares of each series of Preferred
Stock will be entitled to receive the amount fixed for such series upon any such
event (not in excess of $100 per share in the case of involuntary liquidation,
dissolution or winding up) plus, in the case of any series on which dividends
will have been determined by the Board of Directors to be cumulative, an amount
equal to all dividends accumulated and unpaid thereon to the date of final
distribution whether or not earned or declared before any distribution shall be
paid, or set aside for payment, to holders of Common Stock. If the assets of the
Corporation are not sufficient to pay such amounts in full, holders of all
shares of Preferred Stock will participate in the distribution of assets ratably
in proportion to the full amounts to which they are entitled or in such order or
priority, if any, as will have been fixed in the resolution or resolutions
providing for the issue of the series of Preferred Stock. Neither the merger nor
consolidation of the Corporation into or with any other corporation, nor a sale,
transfer or lease of all or part of its assets, will be deemed a liquidation,
dissolution or winding up of the Corporation within the meaning of this
paragraph except to the extent specifically provided for herein. Nothing in this
ARTICLE FOURTH shall limit the power of the Board of Directors to create a
series of Preferred Stock for which the amount to be distributed upon any
liquidation, dissolution or winding up of the Corporation is calculated by
reference to, and the payment of which is concurrent with, the amount to be
distributed to the holders of shares of Common Stock.
(g) The Corporation, at the option of the Board of Directors, may redeem
all or part of the shares of any series of Preferred Stock on the terms and
conditions fixed for such series.
(h) Except as otherwise required by law, as otherwise provided herein or
as otherwise determined by the Board of Directors as to the shares of any series
of Preferred Stock prior to the issuance of any such shares, the holders of
Preferred Stock shall have no voting rights and shall not be entitled to any
notice of meetings of shareholders.
(i) Each holder of shares of Common Stock shall be entitled to one vote
for each share of Common Stock held of record on all matters on which the
holders of shares of Common Stock are entitled to vote. Subject to the
provisions of applicable law and any certificate of designation providing for
the issuance of any series of Preferred Stock, the holders of outstanding shares
of Common Stock shall have and possess the exclusive right to notice of
shareholders' meetings and the exclusive power to vote. No shareholder will be
permitted to cumulate votes at any election of directors.
(j) Subject to all the rights of the Preferred stock, the holders of the
Common Stock shall be entitled to receive, when, as and if declared by the Board
of Directors, out of funds legally available for the payment thereof, dividends
payable in cash, stock or otherwise. Upon any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, and after the
holders of the Preferred Stock of each series shall have been paid in full in
cash the amounts to which they respectively shall be entitled or a sum
sufficient for such payment in full shall have been set aside, the remaining net
assets of the Corporation shall be distributed pro rata to the holders of the
Common Stock in accordance with their respective rights and interests, to the
exclusion of the holders of the Preferred Stock.
SERIES A PARTICIPATING CUMULATIVE PREFERRED STOCK
A description of such Series A Participating Cumulative Preferred Stock
with the designations, voting powers, preferences and relative, participating,
optional and other special rights and qualifications, limitations or
restrictions relating thereto is as follows:
SECTION 1. Designation and Number of Shares. The shares of such
series shall be designated as "Series A Participating Cumulative
Preferred Stock" (the "Series A Preferred Stock"), without par value. The
number of shares initially constituting the Series A Preferred Stock shall
be
3
300,000; provided, however, that, if more than a total of 300,000 shares
of Series A Preferred Stock shall be issuable upon the exercise of Rights
(the "Rights") issued pursuant to that Rights Agreement between the
Corporation and The Bank of New York, a New York banking corporation, as
Rights Agent (the "Rights Agreement"), the Board of Directors of the
Corporation, pursuant to Section 23-1-25-2(d) of the Business Corporation
Law of the State of Indiana, shall direct by resolution or resolutions
that articles of amendment be properly executed and delivered to the
Secretary of State for the State of Indiana for filing in accordance with
the provisions of Section 23-1-18-1 and Section 23-1-38-6 thereof,
providing for the total number of shares of Series A Preferred Stock
authorized to be issued to be increased (to the extent that the Articles
of Incorporation then permit) to the largest number of whole shares
(rounded up to the nearest whole number) issuable upon exercise of such
Rights.
SECTION 2. Dividends or Distributions. (a) Subject to the prior and
superior rights of the holders of shares of any other series of Preferred
Stock or other class of capital stock of the Corporation ranking prior and
superior to the shares of Series A Preferred Stock with respect to
dividends, the holders of shares of the Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors,
out of the assets of the Corporation legally available therefor, (1)
quarterly dividends payable in cash on the last day of each fiscal quarter
in each year, or such other dates as the Board of Directors of the
Corporation shall approve (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or a fraction of
a share of Series A Preferred Stock, in the amount of $.01 per whole share
(rounded to the nearest cent) less the amount of all cash dividends
declared on the Series A Preferred Stock pursuant to the following clause
(2) since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock
(the total of which shall not, in any event, be less than zero) and (2)
dividends payable in cash on the payment date for each cash dividend
declared on the Common Stock in an amount per whole share (rounded to the
nearest cent) equal to the Formula Number (as hereinafter defined) then in
effect times the cash dividends then to be paid on each share of Common
Stock. In addition, if the Corporation shall pay any dividend or make any
distribution on the Common Stock payable in assets, securities or other
forms of noncash consideration (other than dividends or distributions
solely in shares of Common Stock), then, in each such case, the
Corporation shall simultaneously pay or make on each outstanding whole
share of Series A Preferred Stock a dividend or distribution in like kind
equal to the Formula Number then in effect times such dividend or
distribution on each share of the Common Stock. As used herein, the
"Formula Number" shall be 1,000; provided, however, that, if at any time
after the Distribution Record Date (as defined in that Notice of Special
Meeting and Proxy Statement, dated August 30, 1995, filed with the
Securities and Exchange Commission by ITT Corporation), the Corporation
shall (i) declare or pay any dividend on the Common Stock payable in
shares of Common Stock or make any distribution on the Common Stock in
shares of Common Stock, (ii) subdivide (by a stock split or otherwise) the
outstanding shares of Common Stock into a larger number of shares of
Common Stock or (iii) combine (by a reverse stock split or otherwise) the
outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then in each such event the Formula Number shall be adjusted
to a number determined by multiplying the Formula Number in effect
immediately prior to such event by a fraction, the numerator of which is
the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that are outstanding immediately prior to such event (and
rounding the result to the nearest whole number); and provided further,
that, if at any time after the Distribution Record Date, the Corporation
shall issue any shares of its capital stock in a merger, reclassification,
or change of the outstanding shares of Common Stock, then in each such
event the Formula Number shall be appropriately adjusted to reflect such
merger, reclassification or change so that each share of Preferred Stock
continues to be the economic equivalent of a Formula Number of shares of
Common Stock prior to such merger, reclassification or change.
4
(b) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in Section 2 (a) immediately prior to
or at the same time it declares a dividend or distribution on the Common
Stock (other than a dividend or distribution solely in shares of Common
Stock); provided, however, that, in the event no dividend or distribution
(other than a dividend or distribution in shares of Common Stock) shall
have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $.01 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date. The Board of Directors may fix a record date for
the determination of holders of shares of Series A Preferred Stock
entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding
dividend or distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from and after the Quarterly Dividend
Payment Date next preceding the date of original issue of such shares of
Series A Preferred Stock; provided, however, that dividends on such shares
which are originally issued after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive a
quarterly dividend and on or prior to the next succeeding Quarterly
Dividend Payment Date shall begin to accrue and be cumulative from and
after such Quarterly Dividend Payment Date. Notwithstanding the foregoing,
dividends on shares of Series A Preferred Stock which are originally
issued prior to the record date for the determination of holders of shares
or Series A Preferred Stock entitled to receive a quarterly dividend on
the first Quarterly Dividend Payment Date shall be calculated as if
cumulative from and after the last day of the fiscal quarter next
preceding the date of original issuance of such shares. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series
A Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the
time outstanding.
(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends or other distributions shall be declared, paid
or distributed, or set aside for payment or distribution, on the Common
Stock unless, in each case, the dividend required by this Section 2 to be
declared on the Series A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock shall not
be entitled to receive any dividends or other distributions except as
provided herein.
SECTION 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be entitled to a
number of votes equal to the Formula Number then in effect, for each share
of Series A Preferred Stock held of record on each matter on which holders
of the Common Stock or shareholders generally are entitled to vote,
multiplied by the maximum number of votes per share which any holder of
the Common Stock or shareholders generally then have with respect to such
matter (assuming any holding period or other requirement to vote a greater
number of shares is satisfied).
(b) Except as otherwise provided herein or by applicable law, the
holders of shares of Series A Preferred Stock and the holders of shares of
Common Stock shall vote together as one class for the election of
directors of the Corporation and on all other matters submitted to a vote
of shareholders of the Corporation.
(c) If, at the time of any annual meeting of shareholders for the
election of directors, the equivalent of six quarterly dividends (whether
or not consecutive) payable on any share or shares of Series A Preferred
Stock are in default, the number of directors constituting the Board of
Directors of the Corporation shall be increased by two. In addition to
voting together with the
5
holders of Common Stock for the election of other directors of the
Corporation, the holders of record of the Series A Preferred Stock, voting
separately as a class to the exclusion of the holders of Common Stock,
shall be entitled at said meeting of shareholders (and at each subsequent
annual meeting of shareholders), unless all dividends in arrears have been
paid or declared and set apart for payment prior thereto, to vote for the
election of two directors of the Corporation, the holders of any Series A
Preferred Stock being entitled to cast a number of votes per share of
Series A Preferred Stock equal to the Formula Number. Until the default in
payments of all dividends which permitted the election of said directors
shall cease to exist, any director who shall have been so elected pursuant
to the next preceding sentence may be removed at any time, either with or
without cause, only by the affirmative vote of the holders of the shares
of Series A Preferred Stock at the time entitled to cast a majority of the
votes entitled to be cast for the election of any such director at a
special meeting of such holders called for that purpose, and any vacancy
thereby created may be filled by the vote of such holders. If and when
such default shall cease to exist, the holders of the Series A Preferred
Stock shall be divested of the foregoing special voting rights, subject to
revesting in the event of each and every subsequent like default in
payments of dividends. Upon the termination of the foregoing special
voting rights, the terms of office of all persons who may have been
elected directors pursuant to said special voting rights shall forthwith
terminate, and the number of directors constituting the Board of Directors
shall be reduced by two. The voting rights granted by this Section 3(c)
shall be in addition to any other voting rights granted to the holders of
the Series A Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable law,
holders of Series A Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for
authorizing or taking any corporate action.
SECTION 4. Certain Restrictions, (a) Whenever quarterly dividends or other
dividends or distributions payable on the Series A Preferred Stock as provided
in Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of Series A
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except dividends paid ratably on the
Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series A Preferred Stock; provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock ranking
on a parity with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of
the respective annual dividend rates and other relative
6
rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(a) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
SECTION 5. Liquidation Rights. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received an amount, equal to the accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, plus an amount equal to the greater of (x) $.01 per whole share or
(y) an aggregate amount per share equal to the Formula Number then in effect
times the aggregate amount to be distributed per share to holders of Common
Stock or (2) to the holders of stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up) with the Series A Preferred
Stock, except distributions made ratably on the Series A Preferred Stock and all
other such parity stock in proportion to the total amounts to which the holders
of all such shares are entitled upon such liquidation, dissolution or winding
up; provided that in no event shall the amount or amounts, if any, exceed $100
per share plus accrued dividends in the case of involuntary liquidation,
dissolution or winding up of the Corporation.
SECTION 6. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash or any other property, then in any such case the then
outstanding shares of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share equal to the Formula
Number then in effect times the aggregate amount of stock, securities, cash or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is exchanged or changed. In the event both this
Section 6 and Section 2 appear to apply to a transaction, this Section 6 will
control.
SECTION 7. No Redemption; No Sinking Fund. (a) The shares of Series A
Preferred Stock shall not be subject to redemption by the Corporation or at the
option of any holder of Series A Preferred Stock; provided, however, that the
Corporation may purchase or otherwise acquire outstanding shares of Series A
Preferred Stock in the open market or by offer to any holder or holders of
shares of Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not be subject to
or entitled to the operation of a retirement or sinking fund.
SECTION 8. Ranking. The Series A Preferred Stock shall rank junior to all
other series of Preferred Stock of the Corporation, unless the Board of
Directors shall specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other special rights of
the shares of such series and the qualifications, limitations or restrictions
thereof.
SECTION 9. Fractional Shares. The Series A Preferred Stock shall be
issuable upon exercise of the Rights issued pursuant to the Rights Agreement in
whole shares or in any fraction of a share that is one one-thousandths
(1/1,000ths) of a share or any integral multiple of such fraction which shall
entitle the holder, in proportion to such holder's fractional shares, to receive
dividends, exercise voting rights, participate in distributions and to have the
benefit of all other rights of holders of Series A Preferred Stock. In lieu of
fractional shares, the Corporation, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Stock, may elect (1) to make a cash
payment as provided in the Rights Agreement for fractions of a share other than
one one-thousandths (1/1,000ths) of a share or any integral multiple thereof or
(2) to issue depository receipts evidencing such authorized fraction of a share
of Series A Preferred Stock pursuant to an appropriate
7
agreement between the Corporation and a depository selected by the
Corporation; provided that such agreement shall provide that the holders
of such depository receipts shall have all the rights, privileges and
preferences to which they are entitled as holders of the Series A
Preferred Stock.
SECTION 10. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancelation become authorized
but unissued shares of Preferred Stock, without designation as to series
until such shares are once more designated as part of a particular series
by the Board of Directors pursuant to the provisions of ARTICLE FOURTH of
the Articles of Incorporation.
SECTION 11. Amendment. None of the powers, preferences and relative,
participating, optional and other special rights of the Series A Preferred
Stock as provided herein or in the Articles of Incorporation shall be
amended in any manner which would alter or change the powers, preferences,
rights or privileges of the holders of Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of at
least 66-2/3% of the outstanding shares of Series A Preferred Stock,
voting as a separate class, provided, however, that no such amendment
approved by the holders of at least 66-2/3% of the outstanding shares of
Series A Preferred Stock shall be deemed to apply to the powers,
preferences, rights or privileges of any holder of shares of Series A
Preferred Stock originally issued upon exercise of a Right after the time
of such approval without the approval of such holder.
ARTICLE FIFTH
(a) Special meetings of shareholders of the Corporation may be called only
by the Chairman of the Board of Directors or by a majority vote of the entire
Board of Directors.
(b) Shareholders of the Corporation shall not have any preemptive rights
to subscribe for additional issues of stock of the Corporation except as may be
agreed from time to time by the Corporation and any such shareholder.
(c) Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the Corporation, if any, shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of shareholders, an election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of the applicable resolution or resolutions of the Board of Directors
adopted pursuant to ARTICLE FOURTH of these Articles of Incorporation.
ARTICLE SIXTH
To the fullest extent permitted by applicable law as then in effect, no
director or officer shall be personally liable to the Corporation or any of its
shareholders for damages for breach of fiduciary duty as a director or officer,
except for liability (a) for breach of duty if such breach constitutes wilful
misconduct or recklessness or (b) for the payment of distributions to
shareholders in violation of Section 23-1-28-3 of the Indiana Business
Corporation Law. Any repeal or modification of this ARTICLE SIXTH by the
shareholders of the Corporation shall not adversely affect any right or
protection of a director or officer of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions occurring prior to
such repeal or modification.
ARTICLE SEVENTH
The holders of the capital stock of the Corporation shall not be
personally liable for the payment of the Corporation's debts and the private
property of the holders of the capital stock of the Corporation shall not be
subject to the payment of debts of the Corporation to any extent whatsoever.
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ARTICLE EIGHTH
Subject to any express provision of the laws of the State of Indiana,
these Articles of Incorporation or the By-laws of the Corporation, the By-laws
of the Corporation may from time to time be supplemented, amended or repealed,
or new By-laws may be adopted, by the Board of Directors at any regular or
special meeting of the Board of Directors, if such supplement, amendment, repeal
or adoption is approved by a majority of the entire Board of Directors. Subject
to any express provision of the laws of the State of Indiana, these Articles of
Incorporation or the By-laws of the Corporation, the By-laws of the Corporation
may from time to time be supplemented, amended or repealed, or new By-laws may
be adopted, by the shareholders at any regular or special meeting of the
shareholders at which a quorum is present, if such supplement, amendment, repeal
or adoption is approved by the affirmative vote of the holders of at least a
majority of the voting power of all outstanding shares of stock of the
Corporation entitled to vote generally in an election of directors.
ARTICLE NINTH
The Corporation reserves the right to supplement, amend or repeal any
provision contained in these Articles of Incorporation, in the manner now or
hereafter prescribed by the laws of the State of Indiana, and all rights
conferred on shareholders herein are granted subject to this reservation.
ARTICLE TENTH
The name and address of the incorporator signing these Articles of
Incorporation is:
NAME ADDRESS
Xxxxxx X. Xxxxxxx, Xx. 000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
These Articles of Restatement of Articles of Incorporation were duly
adopted by the Board of Directors of the Corporation in accordance with the
provisions of Section 23-1-38-7 of the Indiana Business Corporation Law.
IN WITNESS WHEREOF, I have executed these Articles of Restatement of
Articles of Incorporation this 9TH day of June, 1997.
/s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ATTEST
/s/ Xxxxx X. Xxxx
--------------------------
Name: Xxxxx X. Xxxx
Title: Secretary
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