EXHIBIT 99.1
EXECUTION COPY
U.S. $900,000,000
364-DAY BACKSTOP CREDIT AGREEMENT
Dated as of October 9, 1998
Among
ALLIEDSIGNAL INC.,
as Borrower,
------------
and
THE INITIAL LENDERS NAMED HEREIN,
as Initial Lenders,
-------------------
and
CITIBANK, N.A.,
as Agent
--------
and
BANQUE NATIONALE DE PARIS
BARCLAYS CAPITAL
DEUTSCHE BANK SECURITIES INC.
X.X. XXXXXX SECURITIES INC.
NATIONSBANK XXXXXXXXXX SECURITY LLC
and
XXXXXXX XXXXX XXXXXX INC.
as Arrangers
------------
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 18
SECTION 1.03. Accounting Terms 18
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances 18
SECTION 2.02. Making the Revolving Credit Advances 19
SECTION 2.03. The Competitive Bid Advances 21
SECTION 2.04. Fees 26
SECTION 2.05. Termination or Reduction of the Commitments 27
SECTION 2.06. Repayment of Advances 29
SECTION 2.07. Interest on Revolving Credit Advances 30
SECTION 2.08. Interest Rate Determination 30
SECTION 2.09. Prepayments of Revolving Credit Advances 32
SECTION 2.10. Increased Costs 33
SECTION 2.11. Illegality 34
SECTION 2.12. Payments and Computations 35
SECTION 2.13. Taxes 36
SECTION 2.14. Sharing of Payments, Etc. 39
SECTION 2.15. Use of Proceeds 40
SECTION 2.16. Extension of Termination Date 40
SECTION 2.17. Evidence of Debt 42
ARTICLE III CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03 43
SECTION 3.02. Initial Loan to Each Designated Subsidiary 44
SECTION 3.03. Conditions Precedent to Each Revolving Credit Borrowing 45
SECTION 3.04. Conditions Precedent to Each Competitive Bid Borrowing 46
SECTION 3.05. Determinations Under Section 3.01 47
ARTICLE IV REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company 47
ARTICLE V COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 50
SECTION 5.02. Negative Covenants 54
ARTICLE VI EVENTS OF DEFAULT
SECTION 6.01. Events of Default 56
ARTICLE VII GUARANTEE
SECTION 7.01. Unconditional Guarantee 61
SECTION 7.02. Guarantee Absolute 61
SECTION 7.03. Waivers 62
SECTION 7.04. Remedies 62
SECTION 7.05. No Stay 63
SECTION 7.06. Survival 63
ARTICLE VIII THE AGENT
SECTION 8.01. Authorization and Action 63
SECTION 8.02. Agent's Reliance, Etc. 64
SECTION 8.03. Citibank and Affiliates 64
SECTION 8.04. Lender Credit Decision 65
SECTION 8.05. Indemnification 65
SECTION 8.06. Successor Agent 65
SECTION 8.07. Sub-Agent 66
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Amendments, Etc. 66
SECTION 9.02. Notices, Etc.66
SECTION 9.03. No Waiver; Remedies 67
SECTION 9.04. Costs and Expenses 67
SECTION 9.05. Right of Set-off 68
SECTION 9.06. Binding Effect 69
SECTION 9.07. Assignments and Participations 69
SECTION 9.08. Designated Subsidiaries 72
SECTION 9.09. Confidentiality 72
SECTION 9.10. Mitigation of Yield Protection 73
SECTION 9.11. Governing Law. 73
SECTION 9.12. Execution in Counterparts 73
SECTION 9.13. Jurisdiction, Etc. 73
SECTION 9.14. Substitution of Currency 74
SECTION 9.15. Final Agreement 75
SECTION 9.16. Judgment 75
SECTION 9.17. Waiver of Jury Trial 75
SCHEDULES
Schedule I - List of Applicable Lending Offices
Schedule 3.01(b) - Disclosed Litigation
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Assumption Agreement
Exhibit E - Form of Designation Letter
Exhibit F - Form of Acceptance by Process Agent
Exhibit G - Form of Opinion of J. Xxxxxx Xxxxx, Senior Counsel
of the Company
Exhibit H - Form of Opinion of Counsel to a Designated Subsidiary
Exhibit I - Form of Opinion of Shearman & Sterling, Counsel to the Agent
364-DAY BACKSTOP CREDIT AGREEMENT
Dated as of October 9, 1998
ALLIEDSIGNAL INC., a Delaware corporation (the "Company"), the
banks, financial institutions and other institutional lenders (the "Initial
Lenders") listed on the signature pages hereof, and CITIBANK, N.A.
("Citibank"), as agent (the "Agent") for the Lenders (as hereinafter
defined), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent's Account" means (a) in the case of Advances denominated
in Dollars, the account of the Agent maintained by the Agent at
Citibank at its office at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Account No. 00000000, Attention: Xxxx Xxxxxxx, (b) in the case of
Advances denominated in any Foreign Currency, the account of the
Sub-Agent designated in writing from time to time by the Agent to the
Company and the Lenders for such purpose and (c) in any such case,
such other account of the Agent as is designated in writing from time
to time by the Agent to the Company and the Lenders for such purpose.
"Alternate Currency" means any lawful currency other than Dollars
and the Major Currencies that is freely transferrable and convertible
into Dollars.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate
Advance and such Lender's Eurocurrency Lending Office in the case of a
Eurocurrency Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Agent as its Applicable Lending Office with respect to such
Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such
date as set forth below:
================================================================================
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Xxxxx'x Eurocurrency Rate Advances Eurocurrency Rate Advances
Prior to the Term Loan from the Term Loan Conversion
Conversion Date Date
================================================================================
Xxxxx 0 0.170% 0.225%
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A/A2
Xxxxx 0 0.205% 0.275%
-------
Lower than A/A2
but at least A-/A3
Xxxxx 0 0.265% 0.350%
-------
Lower than A-/A3 but
at least BBB+/Baa1
Xxxxx 0 0.305% 0.400%
-------
Lower than BBB+/Baa1
but at least BBB/Baa2
Xxxxx 0 0.405% 0.525%
-------
Lower than BBB/Baa2
but at least BBB-/Baa3
Xxxxx 0 0.500% 0.700%
-------
Lower than BBB-/Baa3
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
========================== ========================
Public Debt Rating Applicable
S&P/Xxxxx'x Percentage
========================== ========================
Level 1 0.055%
-------
A/A2
Xxxxx 0 0.070%
-------
Lower than A/A2
but at least A-/A3
Xxxxx 0 0.085%
-------
Lower than A-/A3 but at
least BBB+/Baa1
Xxxxx 0 0.095%
-------
Lower than BBB+/Baa1
but at least BBB/Baa2
Xxxxx 0 0.120%
-------
Lower than BBB/Baa2
but at least BBB-/Baa3
Xxxxx 0 0.200%
-------
Lower than BBB-/Baa3
"Applicable Utilization Fee" means, as of any date on which the
Utilization in effect is greater than or equal to 33 1/3%, a percentage per
annum determined by reference to the Public Debt Rating and the Utilization
in effect on such date as set forth:
================================================================
Utilization
Public Debt Rating 33% and Utilization
S&P/Xxxxx'x (Less than) 66% 66%
================================================================
Xxxxx 0 0.000% 0.025%
-------
A/A2
Xxxxx 0 0.025% 0.050%
-------
Lower than A/A2
but at least A-/A3
Xxxxx 0 0.025% 0.050%
-------
Lower than A-/A3 but
at least BBB+/Baa1
Xxxxx 0 0.050% 0.100%
-------
Below BBB+/Baa1
but at least BBB/Baa2
Xxxxx 0 0.050% 0.100%
-------
Below BBB/Baa2
but at least BBB-/Baa3
Xxxxx 0 0.050% 0.175%
-------
Lower than BBB-/Baa3
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" means an Eligible Assignee not previously a
Lender that becomes a Lender hereunder pursuant to Section 2.16.
"Assumption Agreement" means an agreement in substantially the
form of Exhibit D hereto by which an Eligible Assignee agrees to
become a Lender hereunder pursuant to Section 2.16, in each case
agreeing to be bound by all obligations of a Lender hereunder.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1% or, if there
is no nearest 1/16 of 1%, to the next higher 1/16 of 1%) of (i)
1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A)
the latest three-week moving average of secondary market morning
offering rates in the United States for three-month certificates
of deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 360
days) being determined weekly on each Monday (or, if such day is
not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit
dealers to and published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized
standing selected by Citibank, by (B) a percentage equal to 100%
minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve requirement)
for Citibank with respect to liabilities consisting of or
including (among other liabilities) three-month Dollar
non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring Dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means a Revolving Credit Advance denominated
in Dollars that bears interest as provided in Section 2.07(a)(i).
"Borrower" means the Company or any Designated Subsidiary, as the
context requires.
"Borrowing" means a Revolving Credit Borrowing or a Competitive
Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurocurrency Rate Advance or
LIBO Rate Advance, on which dealings are carried on in the London
interbank market and banks are open for business in London and in the
country of issue of the currency of such Eurocurrency Rate Advance or
LIBO Rate Advance (or, in the case of an Advance denominated in the
euro, in Frankfurt, Germany) and, if the applicable Business Day
relates to any Local Rate Advance, on which banks are open for
business in the country of issue of the currency of such Local Rate
Advance.
"Change of Control" means that (i) any Person or group of Persons
(within the meaning of Section 13 or 14 of the Securities Exchange Act
of 1934, as amended (the "Act")) (other than the Company, any
Subsidiary of the Company or any savings, pension or other benefit
plan for the benefit of employees of the Company or its Subsidiaries)
which theretofore beneficially owned less than 30% of the Voting Stock
of the Company then outstanding shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Act) of 30% or more in
voting power of the outstanding Voting Stock of the Company or (ii)
during any period of twelve consecutive calendar months, individuals
who at the beginning of such twelve-month period were directors of the
Company shall cease to constitute a majority of the Board of Directors
of the Company.
"Commitment" means as to any Lender (i) the Dollar amount set
forth opposite its name on the signature pages hereof, (ii) if such
Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the Dollar amount set forth as its Commitment in such
Assumption Agreement or (iii) if such Lender has entered into any
Assignment and Acceptance, the Dollar amount set forth for such Lender
in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d), in each case as the same may be terminated or
reduced, as the case may be, pursuant to Section 2.05.
"Competitive Bid Advance" means an advance by a Lender to any
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to
a Fixed Rate Advance, a LIBO Rate Advance or a Local Rate Advance
(each of which shall be a "Type" of Competitive Bid Advance).
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of any Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to
such Lender resulting from a Competitive Bid Advance made by such
Lender to such Borrower.
"Competitive Bid Reduction" has the meaning specified in Section
2.01.
"Consenting Lenders" has the meaning specified in Section
2.16(b).
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Subsidiary" means, at any time, any Subsidiary the
accounts of which are required at that time to be included on a
Consolidated basis in the Consolidated financial statements of the
Company, assuming that such financial statements are prepared in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.08.
"Debt" means, with respect to any Person: (i) indebtedness of
such Person, which is not limited as to recourse to such Person, for
borrowed money (whether by loan or the issuance and sale of debt
securities) or for the deferred (for 90 days or more) purchase or
acquisition price of property or services; (ii) indebtedness or
obligations of others which such Person has assumed or guaranteed;
(iii) indebtedness or obligations of others secured by a lien, charge
or encumbrance on property of such Person whether or not such Person
shall have assumed such indebtedness or obligations; (iv) obligations
of such Person in respect of letters of credit (other than performance
letters of credit, except to the extent backing an obligation of any
Person which would be Debt of such Person), acceptance facilities, or
drafts or similar instruments issued or accepted by banks and other
financial institutions for the account of such Person; and (v)
obligations of such Person under leases which are required to be
capitalized on a balance sheet of such Person in accordance with GAAP.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Designated Subsidiary" means any corporate Subsidiary of the
Company designated for borrowing privileges under this Agreement
pursuant to Section 9.08.
"Designation Letter" means, with respect to any Designated
Subsidiary, a letter in the form of Exhibit E hereto signed by such
Designated Subsidiary and the Company.
"Disclosed Litigation" has the meaning specified in Section
3.01(b).
"Dollars" and the "$" sign each mean lawful money of the United
States of America.
"Domestic Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Domestic Lending
Office" opposite its name on Schedule I hereto and, with respect to
any other Lender, the office of such Lender specified as its "Domestic
Lending Office" in the Assumption Agreement or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Company and the Agent.
"Domestic Subsidiary" means any Subsidiary whose operations are
conducted primarily in the United States excluding any Subsidiary
whose assets consist primarily of the stock of Subsidiaries whose
operations are conducted outside the United States of America.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender; (iii) a commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$10,000,000,000; (iv) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having a net worth of at least $500,000,000, calculated in
accordance with GAAP; (v) a commercial bank organized under the laws
of any other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having total assets in excess of $10,000,000,000, so long
as such bank is acting through a branch or agency located in the
country in which it is organized or another country that is described
in this clause (v); and (vi) the central bank of any country that is a
member of the Organization for Economic Cooperation and Development.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment,
decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety
or natural resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage, disposal,
release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any
Environmental Law.
"Equivalent" in Dollars of any Foreign Currency on any date means
the equivalent in Dollars of such Foreign Currency determined by using
the quoted spot rate at which the Sub-Agent's principal office in
London offers to exchange Dollars for such Foreign Currency in London
prior to 4:00 P.M. (London time) (unless otherwise indicated by the
terms of this Agreement) on such date as is required pursuant to the
terms of this Agreement, and the "Equivalent" in any Foreign Currency
of Dollars means the equivalent in such Foreign Currency of Dollars
determined by using the quoted spot rate at which the Sub-Agent's
principal office in London offers to exchange such Foreign Currency
for Dollars in London prior to 4:00 P.M. (London time) (unless
otherwise indicated by the terms of this Agreement) on such date as is
required pursuant to the terms of this Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled
group, or under common control with such Person, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) (i) the
occurrence of a reportable event, within the meaning of Section 4043
of ERISA, with respect to any Plan of such Person or any of its ERISA
Affiliates unless the 30-day notice requirement with respect to such
event has been waived by the PBGC, or (ii) the requirements of
subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with a contributing sponsor,
as defined in Section 4001(a)(13) of ERISA, of a Plan of such Person
or any of its ERISA Affiliates, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan of such Person or any of its ERISA Affiliates;
(c) the provision by the administrator of any Plan of such Person or
any of its ERISA Affiliates of a notice of intent to terminate such
Plan in a distress termination pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of such Person or any of its ERISA Affiliates in the
circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by such Person or any of its ERISA Affiliates from a
Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for the imposition of a lien under Section 302(f) of
ERISA shall have been met with respect to any Plan of such Person or
any of its ERISA Affiliates; (g) the adoption of an amendment to a
Plan of such Person or any of its ERISA Affiliates requiring the
provision of security to such Plan pursuant to Section 307 of ERISA;
or (h) the institution by the PBGC of proceedings to terminate a Plan
of such Person or any of its ERISA Affiliates pursuant to Section 4042
of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that constitutes grounds for the termination of,
or the appointment of a trustee to administer, such Plan.
"Escrow" means an escrow established with an independent escrow
agent pursuant to an escrow agreement reasonably satisfactory in form
and substance to the Person or Persons asserting the obligation of one
or more Borrowers to make a payment to it or them hereunder.
"Eurocurrency Lending Office" means, with respect to any Initial
Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" opposite its name on Schedule I hereto and, with
respect to any other Lender, the office of such Lender specified as
its "Eurocurrency Lending Office" in the Assumption Agreement or in
the Assignment and Acceptance pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time
specify to the Company and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
obtained by dividing (a) the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on the applicable
Telerate Page as the London interbank offered rate for deposits in
Dollars or in the relevant Major Currency at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period or, if
for any reason such rate is not available, the average (rounded upward
to the nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits in
Dollars or in the relevant Major Currency are offered by the principal
office of each of the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurocurrency Rate
Advance comprising part of such Revolving Credit Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage for such Interest Period. If the
Telerate Page is unavailable, the Eurocurrency Rate for any Interest
Period for each Eurocurrency Rate Advance comprising part of the same
Revolving Credit Borrowing shall be determined by the Agent on the
basis of applicable rates furnished to and received by the Agent from
the Reference Banks two Business Days before the first day of such
Interest Period, subject, however, to the provisions of Section 2.08.
"Eurocurrency Rate Advance" means a Revolving Credit Advance
denominated in Dollars or in a Major Currency that bears interest as
provided in Section 2.07(a)(ii).
"Eurocurrency Rate Reserve Percentage" for any Interest Period
for all Eurocurrency Rate Advances or LIBO Rate Advances comprising
part of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
includes deposits by reference to which the interest rate on
Eurocurrency Rate Advances or LIBO Rate Advances is determined) having
a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Extension Date" has the meaning specified in Section 2.16(a).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Rate Advance" has the meaning specified in Section
2.03(a)(i), which Advance shall be denominated in Dollars or in any
Foreign Currency.
"Foreign Currency" means any Major Currency or any Alternate
Currency.
"GAAP" has the meaning specified in Section 1.03.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurocurrency Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing,
the period commencing on the date of such Eurocurrency Rate Advance or
LIBO Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurocurrency Rate Advance and ending on the last day
of the period selected by the Borrower requesting such Borrowing
pursuant to the provisions below and, thereafter, with respect to
Eurocurrency Rate Advances, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on
the last day of the period selected by such Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months and, if available to all Lenders, nine
months, as the Borrower requesting the Borrowing may, upon notice
received by the Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(i) such Borrower may not select any Interest Period
that ends after the scheduled Termination Date or, if the
Revolving Credit Advances have been converted to a term loan
pursuant to Section 2.06 prior to such selection, that ends after
the Maturity Date;
(ii) Interest Periods commencing on the same date for
Eurocurrency Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest Period
to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business
Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there is
no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Lenders" means, collectively, (i) Initial Lenders, (ii) each
Assuming Lender that shall become a party hereto pursuant to Section
2.16 and (iii) each Eligible Assignee that shall become a party hereto
pursuant to Section 9.07(a), (b) and (c).
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on the applicable Telerate Page as the
London interbank offered rate for deposits in Dollars or in the
relevant Foreign Currency at approximately 11:00 A.M. (London time)
two Business Days prior to the first day of such Interest Period or,
if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which
deposits in Dollars or in the relevant Foreign Currency are offered by
the principal office of each of the Reference Banks in London, England
to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period
in an amount substantially equal to the amount that would be the
Reference Banks' respective ratable shares of such Borrowing if such
Borrowing were to be a Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage for such Interest Period. If the Telerate Page is
unavailable, the LIBO Rate for any Interest Period for each LIBO Rate
Advance comprising part of the same Competitive Bid Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.08.
"LIBO Rate Advance" means a Competitive Bid Advance denominated
in Dollars or in any Foreign Currency and bearing interest based on
the LIBO Rate.
"Lien" means any lien, mortgage, pledge, security interest or
other charge or encumbrance of any kind.
"Local Rate Advance" means a Competitive Bid Advance denominated
in any Foreign Currency sourced from the jurisdiction of issuance of
such Foreign Currency and bearing interest at a fixed rate.
"Major Currencies" means lawful currency of the United Kingdom of
Great Britain and Northern Ireland, lawful currency of the Federal
Republic of Germany, lawful currency of Japan, lawful currency of the
Republic of France and lawful currency of the European Economic and
Monetary Union.
"Majority Lenders" means at any time Lenders holding at least 51%
of the then aggregate principal amount (based on the Equivalent in
Dollars at such time) of the Revolving Credit Advances owing to
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 51% of the Commitments.
"Material Adverse Change" means any material adverse change in
the financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the financial condition or results of operations of the Company and
its Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or any Lender under this Agreement or any Note
or (c) the ability of the Borrowers to perform their obligations under
this Agreement or any Note.
"Maturity Date" means the earlier of (a) the first anniversary of
the Termination Date and (b) the date of termination in whole of the
aggregate Commitments pursuant to Section 2.05 or 6.01.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of
its ERISA Affiliates 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.
"Multiple Employer Plan" of any Person means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of such Person or any of its ERISA Affiliates
and at least one Person other than such Person or any of its ERISA
Affiliates or (b) was so maintained and in respect of which such
Person or any of its ERISA Affiliates could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
"Net Tangible Assets of the Company and its Consolidated
Subsidiaries", as at any particular date of determination, means the
total amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current
liabilities (excluding any thereof which are by their terms extendible
or renewable at the option of the obligor thereon to a time more than
12 months after the time as of which the amount thereof is being
computed) and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangible
assets, as set forth in the most recent balance sheet of the Company
and its Consolidated Subsidiaries and computed in accordance with
GAAP.
"Non-Consenting Lender" has the meaning specified in Section
2.16(b).
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified
in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified
in Section 2.02(a).
"Obligations" has the meaning specified in Section 7.01(b).
"Payment Office" means, for any Foreign Currency, such office of
Citibank as shall be from time to time selected by the Agent and
notified by the Agent to the Borrowers and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated
association, joint venture, limited liability company or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Process Agent" has the meaning specified in Section 9.13(a).
"Public Debt Rating" means, as of any date, the highest rating
that has been most recently announced by either S&P or Moody's, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by the Company. For purposes of the foregoing,
(a) if only one of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Applicable Utilization Fee and the
Applicable Percentage shall be determined by reference to the
available rating; (b) if neither S&P nor Moody's shall have in effect
a Public Debt Rating, the Applicable Margin, the Applicable
Utilization Fee and the Applicable Percentage will be set in
accordance with Level 6 under the definition of "Applicable Margin,
"Applicable Utilization Fee" or "Applicable Percentage", as the case
may be; (c) if the ratings established by S&P and Moody's shall fall
within different levels, the Applicable Margin, the Applicable
Utilization Fee and the Applicable Percentage shall be based upon the
higher rating; (d) if any rating established by S&P or Moody's shall
be changed, such change shall be effective as of the date on which
such change is first announced publicly by the rating agency making
such change; and (e) if S&P or Moody's shall change the basis on which
ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
"Rating Condition" has the meaning specified in Section
2.05(c)(ii).
"Rating Condition Notice" has the meaning specified in Section
2.05(c)(ii).
"Reference Banks" means Citibank, Bank of America NT&SA, Banque
Nationale de Paris, Barclays Bank plc, Deutsche Bank AG, New York
Branch and/or Cayman Islands Branch and Xxxxxx Guaranty Trust Company
of New York.
"Register" has the meaning specified in Section 9.07(d).
"Restricted Property" means (a) any property of the Company
located within the United States of America that, in the opinion of
the Company's Board of Directors, is a principal manufacturing
property or (b) any shares of capital stock or Debt of any Subsidiary
owning any such property.
"Revolving Credit Advance" means an advance by a Lender to any
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurocurrency Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each
of the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of any Borrower
payable to the order of any Lender, delivered pursuant to a request
made under Section 2.17 in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of such Borrower to such
Lender resulting from the Revolving Credit Advances made by such
Lender to such Borrower.
"Sale and Leaseback Transaction" means any arrangement with any
Person (other than the Company or a Subsidiary of the Company), or to
which any such Person is a party, providing for the leasing to the
Company or to a Subsidiary of the Company owning Restricted Property
for a period of more than three years of any Restricted Property that
has been or is to be sold or transferred by the Company or such
Subsidiary to such Person, or to any other Person (other than the
Company or a Subsidiary of the Company) to which funds have been or
are to be advanced by such Person on the security of the leased
property. It is understood that arrangements pursuant to Section
168(f)(8) of the Internal Revenue Code of 1954, as amended, or any
successor provision having similar effect, are not included within
this definition of "Sale and Leaseback Transaction".
"S&P" means Standard & Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, Inc.
"Single Employer Plan" of any Person means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of such Person or any of its ERISA Affiliates
and no Person other than such Person and its ERISA Affiliates or (b)
was so maintained and in respect of which such Person or any of its
ERISA Affiliates could have liability under Section 4069 of ERISA in
the event such plan has been or were to be terminated.
"Sub-Agent" means Citibank International plc.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital
stock having ordinary voting power to elect a majority of the
Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Telerate Page" means, as applicable, page 3740 or 3750 (or any
successor pages, respectively) of Telerate Service of Bridge
Information Services.
"Term Loan Conversion Date" means the Termination Date on which
all Advances outstanding on such date are converted into a term loan
pursuant to Section 2.06.
"Term Loan Election" has the meaning specified in Section 2.06.
"Termination Date" means the earlier of (a) ___________, 1999, or
such later date to which it may be extended pursuant to Section 2.16,
and (b) the date of termination in whole of the Commitments pursuant
to Section 2.05(a) or (e) or Section 6.01 or, if all Lenders elect to
terminate their Commitments as provided therein, Section 2.05(d).
"Threatened" means, with respect to any action, suit,
investigation, litigation or proceeding, a written communication to
the Company or a Designated Subsidiary, as the case may be, expressing
an intention to immediately bring such action, suit, investigation,
litigation or proceeding.
"Utilization" means, as of any time prior to the Term Loan
Conversion Date, the decimal fraction equal to the aggregate principal
amount of the Advances then outstanding divided by the aggregate
amount of the Lenders' Commitments at such time and, at all times from
the Term Loan Conversion Date, the decimal fraction equal to the
aggregate principal amount of the Advances outstanding on the Term
Loan Conversion Date divided by the aggregate amount of the Lenders'
Commitments immediately prior to the Term Loan Conversion Date.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of
such Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed, and all financial
computations and determinations pursuant hereto shall be made, in
accordance with generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in
Section 4.01(e) ("GAAP"); provided, however, that, if any changes in
accounting principles from those used in the preparation of such financial
statements have been required by the rules, regulations, pronouncements or
opinions of the Financial Accounting Standards Board or the American
Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions) and have been adopted by the Company with
the agreement of its independent certified public accountants, the Lenders
agree to consider a request by the Company to amend this Agreement to take
account of such changes.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to
make Revolving Credit Advances to any Borrower from time to time on any
Business Day during the period from the Effective Date until the
Termination Date in an aggregate amount (based in respect of any Revolving
Credit Advance denominated in a Major Currency on the Equivalent in Dollars
determined on the date of delivery of the applicable Notice of Revolving
Credit Borrowing), not to exceed at any time outstanding such Lender's
Commitment, provided that the aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to the extent of the
aggregate amount (based in respect of any Competitive Bid Advance
denominated in a Foreign Currency on the Equivalent in Dollars at such
time) of the Competitive Bid Advances then outstanding and such deemed use
of the aggregate amount of the Commitments shall be allocated among the
Lenders ratably according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments being a "Competitive Bid
Reduction"). Each Revolving Credit Borrowing shall be in an aggregate
amount not less than $10,000,000 (or the Equivalent thereof in any Major
Currency determined on the date of delivery of the applicable Notice of
Revolving Credit Borrowing) or an integral multiple of $1,000,000 (or the
Equivalent thereof in any Major Currency determined on the date of delivery
of the applicable Notice of Revolving Credit Borrowing) in excess thereof
and shall consist of Revolving Credit Advances of the same Type made on the
same day by the Lenders ratably according to their respective Commitments;
provided, however, that if there is no unused portion of the Commitment of
one or more Lenders at the time of any requested Revolving Credit Borrowing
such Borrowing shall consist of Revolving Credit Advances of the same Type
made on the same day by the Lender or Lenders who do then have an unused
portion of their Commitments ratably according to the unused portion of
such Commitments. Notwithstanding anything herein to the contrary, no
Revolving Credit Borrowing may be made in a Major Currency if, after giving
effect to the making of such Revolving Credit Borrowing, the Equivalent in
Dollars of the aggregate amount of outstanding Revolving Credit Advances
denominated in Major Currencies, together with the Equivalent in Dollars of
the aggregate amount of outstanding Competitive Bid Advances denominated in
Foreign Currencies, would exceed $200,000,000. Within the limits of each
Lender's Commitment, any Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than
(x) 10:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances denominated in
any Major Currency, (y) 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Revolving Credit Borrowing
in the case of a Revolving Credit Borrowing consisting of Eurocurrency Rate
Advances denominated in Dollars or (z) 9:00 A.M. (New York City time) on
the day of the proposed Revolving Credit Borrowing in the case of a
Revolving Credit Borrowing consisting of Base Rate Advances, by any
Borrower to the Agent (and the Agent shall, in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances, immediately
relay such notice to the Sub-Agent), which shall give to each Lender prompt
notice thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall be by
telephone, confirmed immediately in writing, or telecopier or telex in
substantially the form of Exhibit B-1 hereto, specifying therein the
requested (i) date of such Revolving Credit Borrowing, (ii) Type of
Advances comprising such Revolving Credit Borrowing, (iii) aggregate amount
of such Revolving Credit Borrowing, and (iv) in the case of a Revolving
Credit Borrowing consisting of Eurocurrency Rate Advances, initial Interest
Period and currency for each such Revolving Credit Advance. Each Lender
shall, before 11:00 A.M. (New York City time) on the date of such Revolving
Credit Borrowing, in the case of a Revolving Credit Borrowing consisting of
Advances denominated in Dollars, and before 11:00 A.M. (London time) on the
date of such Revolving Credit Borrowing, in the case of a Revolving Credit
Borrowing consisting of Eurocurrency Rate Advances denominated in any Major
Currency, make available for the account of its Applicable Lending Office
to the Agent at the applicable Agent's account, in same day funds, such
Lender's ratable portion (as determined in accordance with Section 2.01) of
such Revolving Credit Borrowing. After the Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article III,
the Agent will make such funds available to the Borrower requesting the
Revolving Credit Borrowing at the Agent's aforesaid address or at the
applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary
notwithstanding, a Borrower may not select Eurocurrency Rate Advances for
any proposed Revolving Credit Borrowing if the obligation of the Lenders to
make Eurocurrency Rate Advances shall then be suspended pursuant to Section
2.08 or 2.11.
(c) Each Notice of Revolving Credit Borrowing of any Borrower
shall be irrevocable and binding on such Borrower. In the case of any
Revolving Credit Borrowing that the related Notice of Revolving Credit
Borrowing specifies is to be comprised of Eurocurrency Rate Advances, the
Borrower requesting such Revolving Credit Borrowing shall indemnify each
Lender against any loss, cost or expense incurred by such Lender as a
result of any failure by such Borrower to fulfill on or before the date
specified in such Notice of Revolving Credit Borrowing for such Revolving
Credit Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Revolving Credit Advance to be made by such Lender as part of such
Revolving Credit Borrowing when such Revolving Credit Advance, as a result
of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Credit Borrowing that such Lender will
not make available to the Agent such Lender's ratable portion of such
Revolving Credit Borrowing, the Agent may assume that such Lender has made
such portion available to the Agent on the date of such Revolving Credit
Borrowing in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower
proposing such Revolving Credit Borrowing on such date a corresponding
amount. If and to the extent that such Lender shall not have so made such
ratable portion available to the Agent, such Lender and such Borrower
severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to such Borrower until the date such
amount is repaid to the Agent, at (i) in the case of such Borrower, the
higher of (A) the interest rate applicable at the time to Revolving Credit
Advances comprising such Revolving Credit Borrowing and (B) the cost of
funds incurred by the Agent in respect of such amount and (ii) in the case
of such Lender, (A) the Federal Funds Rate in the case of Advances
denominated in Dollars or (B) the cost of funds incurred by the Agent in
respect of such amount in the case of Advances denominated in any Major
Currency. If such Lender shall repay to the Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Revolving
Credit Advance as part of such Revolving Credit Borrowing for purposes of
this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall
not relieve any other Lender of its obligation, if any, hereunder to make
its Revolving Credit Advance on the date of such Revolving Credit
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Revolving Credit Advance to be made by such other Lender
on the date of any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that any Borrower may request Competitive Bid Borrowings
under this Section 2.03 from time to time on any Business Day during the
period from the date hereof until the date occurring seven days prior to
the Termination Date in the manner set forth below; provided that,
following the making of each Competitive Bid Borrowing, the aggregate
amount (based in respect of any Advance denominated in a Foreign Currency
on the Equivalent in Dollars on such Business Day) of the Advances then
outstanding shall not exceed the aggregate amount of the Commitments of the
Lenders (computed without regard to any Competitive Bid Reduction).
Notwithstanding anything herein to the contrary, no Competitive Bid
Borrowing may be made in a Foreign Currency if, after giving effect to the
making of such Revolving Credit Borrowing, the Equivalent in Dollars of the
aggregate amount of outstanding Competitive Bid Advances denominated in
Foreign Currencies, together with the Equivalent in Dollars of the
aggregate amount of outstanding Revolving Credit Advances denominated in
Major Currencies, would exceed $200,000,000.
(i) Any Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent (and the Agent shall, in
the case of a Competitive Bid Borrowing not consisting of Fixed Rate
Advances or LIBO Rate Advances to be denominated in Dollars,
immediately notify the Sub-Agent), by telecopier or telex, a notice of
a Competitive Bid Borrowing (a "Notice of Competitive Bid Borrowing"),
in substantially the form of Exhibit B-2 hereto, specifying therein
the requested (A) date of such proposed Competitive Bid Borrowing, (B)
aggregate amount of such proposed Competitive Bid Borrowing, (C)
interest rate basis and day count convention to be offered by the
Lenders, (D) currency of such proposed Competitive Bid Borrowing, (E)
in the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, Interest Period of each Competitive Bid Advance to be made
as part of such Competitive Bid Borrowing, or in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances or Local
Rate Advances, maturity date for repayment of each Fixed Rate Advance
or Local Rate Advance to be made as part of such Competitive Bid
Borrowing (which maturity date may not be earlier than the date
occurring five days after the date of such Competitive Bid Borrowing
or later than the Termination Date), (F) interest payment date or
dates relating thereto, (G) location of such Borrower's account to
which funds are to be advanced, and (H) other terms (if any) to be
applicable to such Competitive Bid Borrowing, not later than (w) 10:00
A.M. (New York City time) at least one Business Day prior to the date
of the proposed Competitive Bid Borrowing, if such Borrower shall
specify in its Notice of Competitive Bid Borrowing that the rates of
interest to be offered by the Lenders shall be fixed rates per annum
(each Advance comprising any such Competitive Bid Borrowing being
referred to herein as a "Fixed Rate Advance") and that the Advances
comprising such proposed Competitive Bid Borrowing shall be
denominated in Dollars, (x) 10:00 A.M. (New York City time) at least
four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if such Borrower shall instead specify in its Notice of
Competitive Bid Borrowing that the Advances comprising such
Competitive Bid Borrowing shall be LIBO Rate Advances denominated in
Dollars, (y) 3:00 P.M. (New York City time) at least three Business
Days prior to the date of the proposed Competitive Bid Borrowing, if
such Borrower shall specify in the Notice of Competitive Bid Borrowing
that the Advances comprising such proposed Competitive Bid Borrowing
shall be either Fixed Rate Advances denominated in any Foreign
Currency or Local Rate Advances denominated in any Foreign Currency
and (z) 3:00 P.M. (New York City time) at least five Business Days
prior to the date of the proposed Competitive Bid Borrowing, if such
Borrower shall instead specify in its Notice of Competitive Bid
Borrowing that the Advances comprising such Competitive Bid Borrowing
shall be LIBO Rate Advances denominated in any Foreign Currency. Each
Notice of Competitive Bid Borrowing shall be irrevocable and binding
on such Borrower. Any Notice of Competitive Bid Borrowing by a
Designated Subsidiary shall be given to the Agent in accordance with
the preceding sentence through the Company on behalf of such
Designated Subsidiary. The Agent shall in turn promptly notify each
Lender of each request for a Competitive Bid Borrowing received by it
from such Borrower by sending such Lender a copy of the related Notice
of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to do
so, irrevocably offer to make one or more Competitive Bid Advances to
the Borrower proposing the Competitive Bid Borrowing as part of such
proposed Competitive Bid Borrowing at a rate or rates of interest
specified by such Lender in its sole discretion, by notifying the
Agent (which shall give prompt notice thereof to such Borrower and to
the Sub-Agent, if applicable), (A) before 9:30 A.M. (New York City
time) on the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of Fixed Rate Advances
denominated in Dollars, (B) before 10:00 A.M. (New York City time)
three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances denominated in Dollars, (C) before 10:00 A.M. (New
York City time) on the second Business Day prior to the date of such
proposed Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of either Fixed Rate Advances denominated in any
Foreign Currency or Local Rate Advances denominated in any Foreign
Currency and (D) before 10:00 A.M. (New York City time) four Business
Days before the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances denominated in any Foreign Currency, of the minimum amount
and maximum amount of each Competitive Bid Advance which such Lender
would be willing to make as part of such proposed Competitive Bid
Borrowing (which amounts, or the Equivalent thereof in Dollars, as the
case may be, may, subject to the proviso to the first sentence of this
Section 2.03(a), exceed such Lender's Commitment, if any), the rate or
rates of interest therefor and such Lender's Applicable Lending Office
with respect to such Competitive Bid Advance; provided that if the
Agent in its capacity as a Lender shall, in its sole discretion, elect
to make any such offer, it shall notify such Borrower of such offer at
least 30 minutes before the time and on the date on which notice of
such election is to be given to the Agent, by the other Lenders. If
any Lender shall elect not to make such an offer, such Lender shall so
notify the Agent, before 10:00 A.M. (New York City time) (and the
Agent shall notify the Sub-Agent, if applicable) on the date on which
notice of such election is to be given to the Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not,
make any Competitive Bid Advance as part of such Competitive Bid
Borrowing; provided that the failure by any Lender to give such notice
shall not cause such Lender to be obligated to make any Competitive
Bid Advance as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower proposing the Competitive Bid Advance shall,
in turn, (A) before 10:30 A.M. (New York City time) on the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances denominated in
Dollars, (B) before 11:00 A.M. (New York City time) three Business
Days before the date of such proposed Competitive Bid Borrowing, in
the case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances denominated in Dollars, (C) before 10:00 A.M. (New York City
time) on the Business Day prior to the date of such Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
either Fixed Rate Advances denominated in any Foreign Currency or
Local Rate Advances denominated in any Foreign Currency and (D) before
10:00 A.M. (New York City time) three Business Days before the date of
such proposed Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances denominated in any
Foreign Currency, either:
(x) cancel such Competitive Bid Borrowing by giving the
Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Agent (and the Agent shall
give notice to the Sub-Agent, if applicable) of the amount of
each Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to such Borrower by the Agent on behalf
of such Lender for such Competitive Bid Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made
by Lenders pursuant to paragraph (ii) above by giving the Agent
notice to that effect; provided, however, that such Borrower
shall not accept any offer in excess of the requested bid amount
for any maturity. Such Borrower shall accept the offers made by
any Lender or Lenders to make Competitive Bid Advances in order
of the lowest to the highest rates of interest offered by such
Lenders. If two or more Lenders have offered the same interest
rate, the amount to be borrowed at such interest rate will be
allocated among such Lenders in proportion to the amount that
each such Lender offered at such interest rate.
(iv) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that such Competitive Bid Borrowing is canceled
pursuant to paragraph (iii)(x) above, the Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid Borrowing shall
not be made.
(v) If the Borrower proposing the Competitive Bid Borrowing
accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above, the Agent shall in turn promptly
notify (A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of such
Competitive Bid Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii) above have been accepted by
the Borrower, (B) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, of the amount of
each Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing,
upon receipt, that the Agent has received forms of documents appearing
to fulfill the applicable conditions set forth in Article III. Each
Lender that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 11:00 A.M. (New York City
time), in the case of Competitive Bid Advances to be denominated in
Dollars or 11:00 A.M. (London time), in the case of Competitive Bid
Advances to be denominated in any Foreign Currency, on the date of
such Competitive Bid Borrowing specified in the notice received from
the Agent pursuant to clause (A) of the preceding sentence or any
later time when such Lender shall have received notice from the Agent
pursuant to clause (C) of the preceding sentence, make available for
the account of its Applicable Lending Office to the Agent (x) in the
case of a Competitive Bid Borrowing denominated in Dollars, at its
address referred to in Section 9.02, in same day funds, such Lender's
portion of such Competitive Bid Borrowing in Dollars, and (y) in the
case of a Competitive Bid Borrowing in a Foreign Currency, at the
Payment Office for such Foreign Currency as shall have been notified
by the Agent to the Lenders prior thereto, in same day funds, such
Lender's portion of such Competitive Bid Borrowing in such Foreign
Currency. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Agent of such funds, the Agent
will make such funds available to such Borrower's account at the
location specified by such Borrower in its Notice of Competitive Bid
Borrowing. Promptly after each Competitive Bid Borrowing the Agent
will notify each Lender of the amount of such Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower proposing the Competitive Bid Borrowing
notifies the Agent that it accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, such
notice of acceptance shall be irrevocable and binding on such
Borrower. Such Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure by
such Borrower to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to
fund the Competitive Bid Advance to be made by such Lender as part of
such Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount not less than $10,000,000 (or the Equivalent thereof in any Foreign
Currency, determined as of the time of the applicable Notice of Competitive
Bid Borrowing) or an integral multiple of $1,000,000 (or the Equivalent
thereof in any Foreign Currency, determined as of the time of the
applicable Notice of Competitive Bid Borrowing) in excess thereof and,
following the making of each Competitive Bid Borrowing, the Borrower that
has borrowed such Competitive Bid Borrowing shall be in compliance with the
limitation set forth in the proviso to the first sentence of subsection (a)
above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, any Borrower may from time to time borrow under this Section
2.03, repay or prepay pursuant to subsection (d) below, and reborrow under
this Section 2.03, provided that a Competitive Bid Borrowing shall not be
made within three Business Days of the date of any other Competitive Bid
Borrowing.
(d) Any Borrower that has borrowed through a Competitive Bid
Borrowing shall repay to the Agent for the account of each Lender that has
made a Competitive Bid Advance, on the maturity date of such Competitive
Bid Advance (such maturity date being that specified by such Borrower for
repayment of such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
provided in the Competitive Bid Note evidencing such Competitive Bid
Advance), the then unpaid principal amount of such Competitive Bid Advance.
Such Borrower shall have no right to prepay any principal amount of any
Competitive Bid Advance unless, and then only on the terms, specified by
such Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
set forth in the Competitive Bid Note evidencing such Competitive Bid
Advance.
(e) Each Borrower that has borrowed through a Competitive Bid
Borrowing shall pay interest on the unpaid principal amount of each
Competitive Bid Advance comprising such Competitive Bid Borrowing from the
date of such Competitive Bid Advance to the date the principal amount of
such Competitive Bid Advance is repaid in full, at the rate of interest for
such Competitive Bid Advance specified by the Lender making such
Competitive Bid Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the interest payment date
or dates specified by such Borrower for such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above, as provided in the Competitive Bid Note evidencing
such Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), such Borrower
shall pay interest on the amount of unpaid principal of and interest on
each Competitive Bid Advance owing to a Lender, payable in arrears on the
date or dates interest is payable thereon, at a rate per annum equal at all
times to 1% per annum above the rate per annum required to be paid on such
Competitive Bid Advance under the terms of the Competitive Bid Note
evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of any Borrower resulting from each
Competitive Bid Advance made to such Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the
Borrower payable to the order of the Lender making such Competitive Bid
Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Company agrees to pay
to the Agent for the account of each Lender a facility fee on the aggregate
amount of such Lender's Commitment from the date hereof in the case of each
Initial Lender and from the effective date specified in the Assumption
Agreement or the Assignment and Acceptance, as the case may be, pursuant to
which it became a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to the Applicable Percentage in
effect from time to time, payable in arrears quarterly on the last day of
each March, June, September and December, commencing December 31, 1998, and
on the Termination Date.
(b) Agent's Fees. The Company shall pay to the Agent for its own
account such fees, and at such times, as the Company and the Agent may
separately agree.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional Ratable Termination or Reduction. The Company shall have the
right, upon at least three Business Days' notice to the Agent, to terminate
in whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that each partial reduction shall be
in an aggregate amount not less than $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and provided further that the aggregate amount
of the Commitments of the Lenders shall not be reduced to an amount that is
less than the sum of the aggregate principal amount of the Competitive Bid
Advances denominated in Dollars then outstanding plus the Equivalent in
Dollars (determined as of the date of the notice of prepayment) of the
aggregate principal amount of the Competitive Bid Advances denominated in
Foreign Currencies then outstanding. The aggregate amount of the
Commitments, once reduced as provided in this Section 2.05(a), may not be
reinstated.
(b) Non-Ratable Termination by Assignment. The Company shall have
the right, upon at least ten Business Days' written notice to the Agent
(which shall then give prompt notice thereof to the relevant Lender), to
require any Lender to assign, pursuant to and in accordance with the
provisions of Section 9.07, all of its rights and obligations under this
Agreement and under the Notes to an Eligible Assignee selected by the
Company; provided, however, that (i) no Event of Default shall have
occurred and be continuing at the time of such request and at the time of
such assignment; (ii) the assignee shall have paid to the assigning Lender
the aggregate principal amount of, and any interest accrued and unpaid to
the date of such assignment on, the Note or Notes of such Lender; (iii) the
Company shall have paid to the assigning Lender any and all facility fees
and other fees payable to such Lender and all other accrued and unpaid
amounts owing to such Lender under any provision of this Agreement
(including, but not limited to, any increased costs or other additional
amounts owing under Section 2.10 and any indemnification for Taxes under
Section 2.13) as of the effective date of such assignment; and (iv) if the
assignee selected by the Company is not an existing Lender, such assignee
or the Company shall have paid the processing and recordation fee required
under Section 9.07(a) for such assignment; provided further that the
Company shall have no right to replace more than three Lenders in any
calendar year pursuant to this Section 2.05(b); and provided further that
the assigning Lender's rights under Sections 2.10, 2.13 and 9.04, and its
obligations under Section 8.05, shall survive such assignment as to matters
occurring prior to the date of assignment.
(c) Non-Ratable Reduction. (i) The Company shall have the right,
at any time other than during any Rating Condition, upon at least ten
Business Days' notice to a Lender (with a copy to the Agent), to terminate
in whole such Lender's Commitment (determined without giving effect to any
Competitive Bid Reduction). Such termination shall be effective, (i) with
respect to such Lender's unused Commitment, on the date set forth in such
notice, provided, however, that such date shall be no earlier than ten
Business Days after receipt of such notice and (ii) with respect to each
Advance outstanding to such Lender, on the last day of the then current
Interest Period relating to such Advance; provided further, however, that
such termination shall not be effective, if, after giving effect to such
termination, the Company would, under this Section 2.05(c), reduce the
Lenders' Commitments in any calendar year by an amount in excess of the
Commitments of any three Lenders or $420,000,000, whichever is greater on
the date of such termination. Notwithstanding the preceding proviso, the
Company may terminate in whole the Commitment of any Lender in accordance
with the terms and conditions set forth in Section 2.05(b) or 2.16(b). Upon
termination of a Lender's Commitment under this Section 2.05(c), the
Company will pay or cause to be paid all principal of, and interest accrued
to the date of such payment on, Advances owing to such Lender and pay any
facility fees or other fees payable to such Lender pursuant to the
provisions of Section 2.04, and all other amounts payable to such Lender
hereunder (including, but not limited to, any increased costs or other
amounts owing under Section 2.10 and any indemnification for Taxes under
Section 2.13); and upon such payments, the obligations of such Lender
hereunder shall, by the provisions hereof, be released and discharged;
provided, however, that such Lender's rights under Sections 2.10, 2.13 and
9.04, and its obligations under Section 8.05 shall survive such release and
discharge as to matters occurring prior to such date. The aggregate amount
of the Commitments of the Lenders once reduced pursuant to this Section
2.05(c) may not be reinstated.
(ii) For purposes of this Section 2.05(c) only, the term "Rating
Condition" shall mean a period commencing with notice (a "Rating Condition
Notice") by the Agent to the Company and the Lenders to the effect that the
Agent has been informed that the rating of the senior public Debt of the
Company is unsatisfactory under the standard set forth in the next
sentence, and ending with notice by the Agent to the Company and the
Lenders to the effect that such condition no longer exists. The Agent shall
give a Rating Condition Notice promptly upon receipt from the Company or
any Lender of notice stating, in effect, that both of S&P and Xxxxx'x (or
any successor by merger or consolidation to the business of either
thereof), respectively, then rate the senior public Debt of the Company
lower than BBB- and Baa3. The Company agrees to give notice to the Agent
forthwith upon any change in a rating by either such organization of the
senior public Debt of the Company; the Agent shall have no duty whatsoever
to verify the accuracy of any such notice from the Company or any Lender or
to monitor independently the ratings of the senior public Debt of the
Company and no Lender shall have any duty to give any such notice. The
Agent shall give notice to the Lenders and the Company as to the
termination of a Rating Condition promptly upon receiving a notice from the
Company to the Agent (which notice the Agent shall promptly notify to the
Lenders) stating that the rating of the senior public Debt of the Company
does not meet the standard set forth in the second sentence of this clause
(ii), and requesting that the Agent notify the Lenders of the termination
of the Rating Condition. The Rating Condition shall terminate upon the
giving of such notice by the Agent.
(d) Termination by a Lender. In the event that a Change of
Control occurs, each Lender may, by notice to the Company and the Agent
given not later than 50 calendar days after such Change of Control,
terminate its Commitment, which Commitment shall be terminated effective as
of the later of (i) the date that is 60 calendar days after such Change of
Control or (ii) the end of the Interest Period for any Advance outstanding
at the time of such Change of Control or for any Advance made pursuant to
the next sentence of this Section 2.05(d). Upon the occurrence of a Change
of Control, each Borrower's right to make a Borrowing under this Agreement
shall be suspended for a period of 60 calendar days, except for Advances
having an interest period ending not later than 90 calendar days after such
Change of Control. A notice of termination pursuant to this Section 2.05(d)
shall not have the effect of accelerating any outstanding Advance of such
Lender and the Notes of such Lender.
(e) Mandatory Termination. The Commitments shall be terminated in
full on the effective date of the $7,000,000,000 364-day revolving credit
facility pursuant to a credit agreement among the Company, the lenders
party thereto and Citibank, as agent for such lenders, in substantially
similar form to this Agreement.
SECTION 2.06. Repayment of Advances. (a) Revolving Credit
Advances. Each Borrower shall subject to the next succeeding sentence,
repay to the Administrative Agent, for the ratable account of the Lenders,
on the Termination Date the aggregate principal amount of all Revolving
Credit Advances made to it outstanding on such date. The Company may, upon
not less than 15 days' notice to the Agent, elect (the "Term Loan
Election") to convert on the Termination Date all of the Revolving Credit
Advances outstanding on the Termination Date in effect at such time into a
term loan which the Borrower that requested each such Revolving Credit
Advance shall repay in full ratably to the Lenders on the Maturity Date;
provided that the Term Loan Election may not be exercised if a Default has
occurred and is continuing on the date of notice of the Term Loan Election
or on the date on which the Term Loan Election is to be effected. All
Revolving Credit Advances converted to a term loan pursuant to this Section
2.06(a) shall continue to constitute Revolving Credit Advances except that
the Borrowers may not reborrow pursuant to Section 2.01 after all or any
portion of such Revolving Credit Advances have been prepaid pursuant to
Section 2.10.
(b) Competitive Bid Advances. Each Borrower shall repay to the
Administrative Agent, for the account of each Lender that has made a
Competitive Bid Advance, the aggregate outstanding principal amount of each
Competitive Bid Advance made to such Borrower and owing to such Lender on
the earlier of (i) the maturity date therefor, specified in the related
Notice of Competitive Bid Borrowing delivered pursuant to Section
2.03(a)(i) and (ii) the Termination Date.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. Each Borrower shall pay interest on the unpaid
principal amount of each Revolving Credit Advance owing by such Borrower to
each Lender from the date of such Revolving Credit Advance until such
principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Utilization Fee in effect from time to time,
payable in arrears quarterly on the last day of each March, June,
September and December during such periods and on the date such Base
Rate Advance shall be paid in full.
(ii) Eurocurrency Rate Advances. During such periods as such
Revolving Credit Advance is a Eurocurrency Rate Advance, a rate per
annum equal at all times during each Interest Period for such
Revolving Credit Advance to the sum of (x) the Eurocurrency Rate for
such Interest Period for such Revolving Credit Advance plus (y) the
Applicable Margin in effect from time to time plus (z) the Applicable
Utilization Fee in effect from time to time, payable in arrears on the
last day of such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that occurs during
such Interest Period every three months from the first day of such
Interest Period and on the date such Eurocurrency Rate Advance shall
be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), each Borrower
shall pay interest on (i) the unpaid principal amount of each Revolving
Credit Advance owing by such Borrower to each Lender, payable in arrears on
the dates referred to in clause (a)(i) or (a)(ii) above, at a rate per
annum equal at all times to 1% per annum above the rate per annum required
to be paid on such Revolving Credit Advance pursuant to clause (a)(i) or
(a)(ii) above and (ii) to the fullest extent permitted by law, the amount
of any interest, fee or other amount payable hereunder by such Borrower
that is not paid when due, from the date such amount shall be due until
such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at
all times to 1% per annum above the rate per annum required to be paid on
such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii) above.
SECTION 2.08. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurocurrency Rate and each LIBO Rate if the applicable
Telerate Page is unavailable. If any one or more of the Reference Banks
shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall determine such interest
rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Company and the
Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.07(a)(i) or (ii), and the rate, if any, furnished by
each Reference Bank for the purpose of determining the interest rate under
Section 2.07(a)(ii).
(b) If, with respect to any Eurocurrency Rate Advances, the
Majority Lenders notify the Agent that (i) they are unable to obtain
matching deposits in the London interbank market at or about 11:00 A.M.
(London time) on the second Business Day before the making of a Borrowing
in sufficient amounts to fund their respective Revolving Credit Advances as
part of such Borrowing during its Interest Period or (ii) the Eurocurrency
Rate for any Interest Period for such Advances will not adequately reflect
the cost to such Majority Lenders of making, funding or maintaining their
respective Eurocurrency Rate Advances for such Interest Period, the Agent
shall forthwith so notify each Borrower and the Lenders, whereupon (A) the
Borrower will, on the last day of the then existing Interest Period
therefor, (1) if such Eurocurrency Rate Advances are denominated in
Dollars, either (x) prepay such Advances or (y) Convert such Advances into
Base Rate Advances and (2) if such Eurocurrency Rate Advances are
denominated in any Major Currency, either (x) prepay such Advances or (y)
redenominate such Advances into an Equivalent amount of Dollars and Convert
such Advances into Base Rate Advances, and (B) the obligation of the
Lenders to make Eurocurrency Rate Advances in the same currency as such
Eurocurrency Rate Advances shall be suspended until the Agent shall notify
each Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If any Borrower, in requesting a Revolving Credit Borrowing
comprised of Eurocurrency Rate Advances, shall fail to select the duration
of the Interest Period for such Eurocurrency Rate Advances in accordance
with the provisions contained in the definition of "Interest Period" in
Section 1.01, the Agent will forthwith so notify the Borrower and the
Lenders and such Advances will (to the extent such Eurocurrency Rate
Advances remain outstanding on such day) automatically, on the last day of
the then existing Interest Period therefor, (i) if such Eurocurrency Rate
Advances are denominated in Dollars, Convert into Base Rate Advances and
(ii) if such Eurocurrency Rate Advances are denominated in any Major
Currency, be redenominated into an Equivalent amount of Dollars and be
Converted into Base Rate Advances.
(d) Upon the occurrence and during the continuance of any Event
of Default under Section 6.01(a), (i) each Eurocurrency Rate Advance will
(to the extent such Eurocurrency Rate Advance remains outstanding on such
day) automatically, on the last day of the then existing Interest Period
therefor, (A) if such Eurocurrency Rate Advance is denominated in Dollars,
be Converted into a Base Rate Advance and (B) if such Eurocurrency Rate
Advance is denominated in any Major Currency, be redenominated into an
Equivalent amount of Dollars and Converted into a Base Rate Advance and
(ii) the obligation of the Lenders to make Eurocurrency Rate Advances shall
be suspended.
(e) If the applicable Telerate Page is unavailable and fewer than
two Reference Banks furnish timely information to the Agent for determining
the Eurocurrency Rate or LIBO Rate for any Eurocurrency Rate Advances or
LIBO Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the relevant Borrower and
the Lenders that the interest rate cannot be determined for such
Eurocurrency Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurocurrency Rate Advances, each such
Advance will (to the extent such Eurocurrency Rate Advance remains
outstanding on such day) automatically, on the last day of the then
existing Interest Period therefor, (A) if such Eurocurrency Rate
Advance is denominated in Dollars, be prepaid by the applicable
Borrower or be automatically Converted into a Base Rate Advance and
(B) if such Eurocurrency Rate Advance is denominated in any Major
Currency, be prepaid by the applicable Borrower or be automatically
redenominated into an Equivalent amount of Dollars and Converted into
a Base Rate Advance (or if such Advance is then a Base Rate Advance,
will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurocurrency Rate
Advances or LIBO Rate Advances shall be suspended until the Agent
shall notify the Borrowers and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.09. Prepayments of Revolving Credit Advances. (a)
Optional Prepayments. Each Borrower may, upon notice to the Agent stating
the proposed date and aggregate principal amount of the prepayment, given
not later than 11:00 A.M. (New York City time) on the second Business Day
prior to the date of such proposed prepayment, in the case of Eurocurrency
Rate Advances, and not later than 11:00 A.M. (New York City time) on the
day of such proposed prepayment, in the case of Base Rate Advances, and, if
such notice is given, such Borrower shall, prepay the outstanding principal
amount of the Revolving Credit Advances comprising part of the same
Revolving Credit Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid; provided, however, that (x) each partial prepayment shall be in an
aggregate principal amount not less than $10,000,000 or the Equivalent
thereof in a Major Currency (determined on the date notice of prepayment is
given) or an integral multiple of $1,000,000 or the Equivalent thereof in a
Major Currency (determined on the date notice of prepayment is given) in
excess thereof and (y) in the event of any such prepayment of a
Eurocurrency Rate Advance other than on the last day of the Interest Period
therefor, such Borrower shall be obligated to reimburse the Lenders in
respect thereof pursuant to Section 9.04(c). Each notice of prepayment by a
Designated Subsidiary shall be given to the Administrative Agent through
the Company.
(b) Mandatory Prepayments. (i) If, on any date, the sum of (A)
the aggregate principal amount of all Advances denominated in Dollars then
outstanding plus (B) the Equivalent in Dollars (determined on the third
Business Day prior to such date) of the aggregate principal amount of all
Advances denominated in Foreign Currencies then outstanding exceeds 103% of
the aggregate Commitments of the Lenders on such date, the Company and each
other Borrower, if any, shall thereupon promptly prepay the outstanding
principal amount of any Advances owing by such Borrower in an aggregate
amount sufficient to reduce such sum to an amount not to exceed 100% of the
aggregate Commitments of the Lenders on such date, together with any
interest accrued to the date of such prepayment on the principal amounts
prepaid and, in the case of any prepayment of a Eurocurrency Rate Advance,
a LIBO Rate Advance or a Local Rate Advance on a date other than the last
day of an Interest Period or at its maturity, any additional amounts which
such Borrower shall be obligated to reimburse to the Lenders in respect
thereof pursuant to Section 9.04(c). The Agent shall give prompt notice of
any prepayment required under this Section 2.09(b)(i) to the Borrowers and
the Lenders.
(ii) If, on any date, the sum of (A) the Equivalent in Dollars of
the aggregate principal amount of all Eurocurrency Rate Advances
denominated in Major Currencies then outstanding plus (B) the Equivalent in
Dollars of the aggregate principal amount of all Competitive Bid Advances
denominated in Foreign Currencies then outstanding, shall exceed 110% of
$200,000,000, the Company and each other Borrower shall prepay the
outstanding principal amount of any such Eurocurrency Rate Advances or any
such LIBO Rate Advances owing by such Borrower, on the last day of the
Interest Periods relating to such Advances, in an aggregate amount
sufficient to reduce such sum to an amount not to exceed $200,000,000,
together with any interest accrued to the date of such prepayment on the
principal amounts prepaid. The Agent shall give prompt notice of any
prepayment required under this Section 2.09(b)(ii) to the Borrowers and the
Lenders.
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority including, without limitation,
any agency of the European Union or similar monetary or multinational
authority (whether or not having the force of law), there shall be any
increase in the cost to any Lender of agreeing to make or making, funding
or maintaining Eurocurrency Rate Advances or LIBO Rate Advances (excluding
for purposes of this Section 2.10 any such increased costs resulting from
(i) Taxes or Other Taxes (as to which Section 2.13 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under
the laws of which such Lender is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower of such
Advances shall from time to time, upon demand by such Lender (with a copy
of such demand to the Agent), pay to the Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost,
submitted to such Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent manifest error.
(b) If any Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority including, without limitation, any agency of the
European Union or similar monetary or multinational authority (whether or
not having the force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender and that the amount of such capital is increased by
or based upon the existence of such Lender's commitment to lend hereunder
and other commitments of this type, then, upon demand by such Lender (with
a copy of such demand to the Agent), the Company shall pay to the Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation
in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A certificate as
to such amounts submitted to the Company and the Agent by such Lender shall
be conclusive and binding for all purposes, absent manifest error.
(c) Any Lender claiming any additional amounts payable pursuant
to this Section 2.10 shall, upon the written request of the Company
delivered to such Lender and the Agent, assign, pursuant to and in
accordance with the provisions of Section 9.07, all of its rights and
obligations under this Agreement and under the Notes to an Eligible
Assignee selected by the Company; provided, however, that (i) no Default
shall have occurred and be continuing at the time of such request and at
the time of such assignment; (ii) the assignee shall have paid to the
assigning Lender the aggregate principal amount of, and any interest
accrued and unpaid to the date of such assignment on, the Note or Notes of
such Lender; (iii) the Company shall have paid to the assigning Lender any
and all facility fees and other fees payable to such Lender and all other
accrued and unpaid amounts owing to such Lender under any provision of this
Agreement (including, but not limited to, any increased costs or other
additional amounts owing under this Section 2.10, and any indemnification
for Taxes under Section 2.13) as of the effective date of such assignment
and (iv) if the assignee selected by the Company is not an existing Lender,
such assignee or the Company shall have paid the processing and recordation
fee required under Section 9.07(a) for such assignment; provided further
that the assigning Lender's rights under Sections 2.10, 2.13 and 9.04, and
its obligations under Section 8.05, shall survive such assignment as to
matters occurring prior to the date of assignment.
SECTION 2.11. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes
it unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for any Lender or its Eurocurrency Lending Office to
perform its obligations hereunder to make Eurocurrency Rate Advances in
Dollars or any Major Currency or LIBO Rate Advances in Dollars or in any
Foreign Currency or to fund or maintain Eurocurrency Rate Advances in
Dollars or in any Major Currency or LIBO Rate Advances in Dollars or in any
Foreign Currency hereunder, (a) each such Eurocurrency Rate Advance or such
LIBO Rate Advance, as the case may be, will automatically, upon such
demand, (i) if such Eurocurrency Rate Advance or LIBO Rate Advance is
denominated in Dollars, be Converted into a Base Rate Advance or an Advance
that bears interest at the rate set forth in Section 2.07(a)(i), as the
case may be, and (ii) if such Eurocurrency Rate Advance or LIBO Rate
Advance is denominated in any Foreign Currency, be redenominated into an
Equivalent amount of Dollars and Converted into a Base Rate Advance or an
Advance that bears interest at the rate set forth in Section 2.07(a)(i), as
the case may be, and (b) the obligation of the Lenders to make such
Eurocurrency Rate Advances or such LIBO Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) Each Borrower shall
make each payment hereunder and under any Notes, except with respect to
principal of, interest on, and other amounts relating to, Advances
denominated in a Foreign Currency, not later than 11:00 A.M. (New York City
time) on the day when due in Dollars to the Agent at the applicable Agent's
Account in same day funds. Each Borrower shall make each payment hereunder
and under any Notes with respect to principal of, interest on, and other
amounts relating to Advances denominated in a Foreign Currency not later
than 12:00 Noon (at the Payment Office for such Foreign Currency) on the
day when due in such Foreign Currency to the Agent in same day funds by
deposit of such funds to the applicable Agent's Account. The Agent will
promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.03, 2.05(b), 2.05(c), 2.10, 2.13,
2.16 or 9.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the payment of any
other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the
Register pursuant to Section 9.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all
payments hereunder and under any Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between
themselves. Upon any Assuming Lender becoming a Lender hereunder as a
result of the effectiveness of an extension of the Termination Date
pursuant to Section 2.16, and upon the Agent's receipt of such Lender's
Assumption Agreement and recording the information contained therein in the
Register, from and after the Increase Date or the Extension Date, as the
case may be, the Agent shall make all payments hereunder and under any
Notes in respect of the interest assumed thereby to the Assuming Lender.
(b) All computations of interest based on the Base Rate and of
facility fees shall be made by the Agent on the basis of a year of 365 or
366 days, as the case may be, all computations of interest based on the
Eurocurrency Rate or the Federal Funds Rate shall be made by the Agent on
the basis of a year of 360 days and all computations in respect of
Competitive Bid Advances shall be made by the Agent or the Sub-Agent, as
the case may be, as specified in the applicable Notice of Competitive Bid
Borrowing (or, in each case of Advances denominated in Foreign Currencies
where market practice differs, in accordance with market practice), in each
case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or facility
fees are payable. Each determination by the Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall
in such case be included in the computation of payment of interest or
facility fee, as the case may be; provided, however, that, if such
extension would cause payment of interest on or principal of Eurocurrency
Rate Advances or LIBO Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business
Day.
(d) Unless the Agent shall have received notice from any Borrower
prior to the date on which any payment is due to the Lenders hereunder that
such Borrower will not make such payment in full, the Agent may assume that
such Borrower has made such payment in full to the Agent on such date and
the Agent may, in reliance upon such assumption, cause to be distributed to
each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent such Borrower shall not have so made such
payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the Agent, at
(i) the Federal Funds Rate in the case of Advances denominated in Dollars
or (ii) the cost of funds incurred by the Agent in respect of such amount
in the case of Advances denominated in Foreign Currencies.
SECTION 2.13. Taxes. (a) Any and all payments by any Borrower
hereunder or under the Notes shall be made, in accordance with Section
2.12, free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, net income taxes imposed by the United States and taxes imposed
on its overall net income, and franchise taxes imposed on it in lieu of net
income taxes, by the jurisdiction under the laws of which such Lender or
the Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on its overall net
income, and franchise taxes imposed on it in lieu of net income taxes, by
the jurisdiction of such Lender's Applicable Lending Office or any
political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as
"Taxes"). If any Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender
or the Agent, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable
to additional sums payable under this Section 2.13) such Lender or the
Agent (as the case may be) receives 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 taxation authority or other authority in
accordance with applicable law.
(b) In addition, each Borrower agrees to pay any present 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
under the Notes or from the execution, delivery or registration of,
performing under, or otherwise with respect to, this Agreement or the Notes
(hereinafter referred to as "Other Taxes").
(c) Each Borrower shall indemnify each Lender and the Agent for
the full amount of Taxes or Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section
2.13) imposed on or paid by such Lender or the Agent (as the case may be)
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto; provided, however, that a Borrower shall
not be obligated to pay any amounts in respect of penalties, interest or
expenses pursuant to this paragraph that are payable solely as a result of
(i) the failure on the part of the pertinent Lender or the Agent to pay
over those amounts received from the Borrowers under this clause (c) or
(ii) the gross negligence or willful misconduct on the part of the
pertinent Lender or the Agent. This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes
written demand therefor. Each Lender agrees to provide reasonably prompt
notice to the Agent, the Company and any Borrower of any imposition of
Taxes or Other Taxes against such Lender; provided that failure to give
such notice shall not affect such Lender's rights to indemnification
hereunder. Each Lender agrees that it will, promptly upon a request by the
Company or a Borrower having made an indemnification payment hereunder,
furnish to the Company or such Borrower, as the case may be, such evidence
as is reasonably available to such Lender as to the payment of the relevant
Taxes or Other Taxes, and that it will, if requested by the Company or such
Borrower, cooperate with the Company or such Borrower, as the case may be,
in its efforts to obtain a refund or similar relief in respect of such
payment.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower shall furnish to the Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on
behalf of any Borrower through an account or branch outside the United
States or by or on behalf of any Borrower by a payor that is not a United
States person, if such Borrower determines that no Taxes are payable in
respect thereof, such Borrower shall furnish, or shall cause such payor to
furnish, to the Agent, at such address, an opinion of counsel acceptable to
the Agent stating that such payment is exempt from Taxes. For purposes of
this subsection (d) and subsection (e), the terms "United States" and
"United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender and on the
date of the Assignment and Acceptance or the Assumption Agreement, as the
case may be, pursuant to which it becomes a Lender in the case of each
other Lender, and from time to time thereafter as requested in writing by
any Borrower (but only so long as such Lender remains lawfully able to do
so), shall provide the Agent and each Borrower with two original Internal
Revenue Service forms 1001 or 4224, as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes. In
addition, each Lender further agrees to provide any Borrower with any form
or document as any Borrower may request which is required by any taxing
authority outside the United States in order to secure an exemption from,
or reduction in the rate of, withholding tax. If the forms provided by a
Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be considered excluded from Taxes unless
and until such Lender provides the appropriate forms certifying that a
lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance or
the Assumption Agreement, as the case may be, pursuant to which a Lender
becomes a party to this Agreement, such Lender was entitled to payments
under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States
withholding tax, if any, applicable with respect to such Lender on such
date. If any form or document referred to in this subsection (e) requires
the disclosure of information, other than information necessary to compute
the tax payable and information required on the date hereof by Internal
Revenue Service form 1001 or 4224, that a Lender reasonably considers to be
confidential, such Lender shall give notice thereof to each Borrower and
shall not be obligated to include in such form or document such
confidential information.
(f) For any period with respect to which a Lender has failed to
provide each Borrower with the appropriate form described in Section
2.13(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first
sentence of subsection (e) above), such Lender shall not be entitled to
indemnification under Section 2.13(a) or (c) with respect to Taxes imposed
by the United States by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a
form required hereunder, each Borrower shall take such steps as such Lender
shall reasonably request to assist such Lender to recover such Taxes.
(g) If any Borrower is required to pay any additional amount to
any Lender or to the Agent or on behalf of any of them to any taxing
authority pursuant to this Section 2.13, such Lender shall, upon the
written request of the Company delivered to such Lender and the Agent,
assign, pursuant to and in accordance with the provisions of Section 9.07,
all of its rights and obligations under this Agreement and under the Notes
to an Eligible Assignee selected by the Company; provided, however, that
(i) no Default shall have occurred and be continuing at the time of such
request and at the time of such assignment; (ii) the assignee shall have
paid to the assigning Lender the aggregate principal amount of, and any
interest accrued and unpaid to the date of such assignment on, the Note or
Notes of such Lender; (iii) the Company shall have paid to the assigning
Lender any and all facility fees and other fees payable to such Lender and
all other accrued and unpaid amounts owing to such Lender under any
provision of this Agreement (including, but not limited to, any increased
costs or other additional amounts owing under Section 2.10, and any
indemnification for Taxes under this Section 2.13) as of the effective date
of such assignment; and (iv) if the assignee selected by the Company is not
an existing Lender, such assignee or the Company shall have paid the
processing and recordation fee required under Section 9.07(a) for such
assignment; provided further that the assigning Lender's rights under
Sections 2.10, 2.13 and 9.04, and its obligations under Section 8.05, shall
survive such assignment as to matters occurring prior to the date of
assignment.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of setoff, or otherwise) on account of the Revolving Credit
Advances owing to it (other than pursuant to Section 2.03, 2.05(b),
2.05(c), 2.10, 2.13, 2.16 or 9.04(c)) in excess of its ratable share of
payments on account of the Revolving Credit Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender,
such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 2.14 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances shall
be available (and each Borrower agrees that it shall use such proceeds)
solely to finance, or to backstop commercial paper issued in connection
with, the acquisition of AMP Inc. and for other general corporate purposes
of such Borrower and its Subsidiaries, including, without limitation,
backstop of commercial paper.
SECTION 2.16. Extension of Termination Date. (a) At least 45 (but
no earlier than 60) days prior to each anniversary date hereof and provided
all representations and warranties are true and correct in all material
respects and no Event of Default has occurred and is continuing, the
Company may, at its option, by written notice to the Agent, request that
the Lenders extend for an additional 364 days from the Termination Date
then in effect; provided, however, that the Company shall not have made the
Term Loan Election for Advances outstanding on such Termination Date prior
to such time. Each Lender, in its sole discretion, shall consent or not
consent to such extension and shall notify the Agent of its consent or
nonconsent to such extension within 20 Business Days of notice of such
request from the Agent. If all of the Lenders consent in writing, the then
applicable Termination Date shall, effective as at such anniversary date
(the "Extension Date"), be extended for a period of 364 days from such
Extension Date.
(b) If not all of the Lenders consent, pursuant to subsection (a)
of this Section 2.16, to an extension of the Termination Date then in
effect (the Lenders so consenting in writing being the "Consenting
Lenders", and any Lender not so consenting being a "Non-Consenting
Lender"), the Company may:
(i) arrange for one or more Consenting Lenders or other Eligible
Assignees as Assuming Lenders to assume, effective on the Extension
Date, any Non-Consenting Lender's Commitment and all of the
obligations of such Lender under this Agreement thereafter arising,
and effective on such Extension Date, each such Consenting Lender or
such Assuming Lender will be substituted for such Non-Consenting
Lender under this Agreement; provided, however, that the amount of the
Commitment of any such Assuming Lender as a result of such
substitution shall in no event be less than $10,000,000; provided
further that (i) any such Consenting Lender or Assuming Lender shall
have paid to such Non-Consenting Lender the aggregate principal amount
of, and any interest accrued and unpaid to the date of the assignment
on, the Advances of such Non-Consenting Lender; (ii) the Company shall
have paid to such Non-Consenting Lender any and all facility fees and
other fees payable to such Non-Consenting Lender and all other accrued
and unpaid amounts owing to such Non-Consenting Lender under any
provision of this Agreement (including, but not limited to, any
increased costs or other additional amounts owing under Section 2.10,
and any indemnification for Taxes under this Section 2.13) as of the
effective date of such assignment; and (iii) with respect to any such
Assuming Lender, such Assuming Lender or the Company shall have paid
the applicable processing and recordation fee required under Section
9.07(a) for such assignment; provided further that such Non-Consenting
Lender's rights under Sections 2.10, 2.13 and 9.04, and its
obligations under Section 8.05, shall survive such substitution as to
matters occurring prior to the date of substitution; provided further
that, on or prior to the tenth day prior to the Extension Date, (x)
any such Assuming Lender shall have delivered to the Company and the
Agent an Assumption Agreement in substantially the form of Exhibit D
hereto, duly executed by such Assuming Lender, such Non-Consenting
Lender and the Company, (y) any such Consenting Bank shall have
delivered confirmation in writing satisfactory to the Agent as to its
increased Commitment and (z) each Non-Consenting Lender being replaced
pursuant to this clause (i) shall have delivered to the Agent any
Revolving Credit Note or Notes held by such Non-Consenting Lender; and
provided further that, if requested by any Assuming Lender, each
Borrower, at its own expense, shall have executed and delivered to the
Agent no later than 10:00 A.M. (New York City time) on the Extension
Date, Revolving Credit Notes payable to the order of each such
Assuming Lender, if any, dated as of the Extension Date and
substantially in the form of Exhibit A-1 hereto; or
(ii) subject to the giving of notice to such Non-Consenting
Lender at least four days prior to the Extension Date, pay, prepay or
cause to be prepaid, on and effective as of the Extension Date, all
principal of, and interest accrued to the date of such payment on,
Advances and all other amounts owing to such Non-Consenting Lender
hereunder (including, but not limited to, any increased costs or other
additional amounts owing under Section 2.10 and any indemnification
for Taxes under Section 2.13) and terminate in whole any
Non-Consenting Lender's Commitment, notwithstanding the provisions of
Section 2.05; and, upon such payment or prepayment, the obligations of
such Non-Consenting Lender hereunder shall, by the provisions hereof,
be released and discharged; provided, however, that such
Non-Consenting Lender's rights under Sections 2.10, 2.13 and 9.04, and
its obligations under Section 8.05 shall survive such release and
discharge as to matters occurring prior to the Extension Date.
(c) In the event that, on or prior to the then applicable
Extension Date, all Non-Consenting Lenders shall have been superseded by
Consenting Lenders or Assuming Lenders or shall have had their Commitments
terminated pursuant to subsection (b)(i) or (b)(ii) above, the Termination
Date then in effect shall be extended for the additional one-year period as
described in subsection (a) above, each Non-Consenting Lender shall have no
further Commitment hereunder, and each Assuming Lender, if any, shall
thereafter be substituted as a party to this Agreement and be a Lender for
the purposes of this Agreement, without any further acknowledgment by or
the consent of the Lenders. The Agent shall thereupon promptly deliver the
new Revolving Credit Notes to the respective Assuming Lenders requesting
such Notes and record in the Register the relevant information with respect
to each Consenting Lender and each such Assuming Lender.
(d) In the event that (x) as to a Non-Consenting Lender, neither
procedure contemplated by subsection (b)(i) or (b)(ii) above is implemented
in a timely basis or (y) the Company shall, by written notice to the Agent
at least four days prior to the Extension Date, withdraw its request for
the extension of the Termination Date then in effect, such request by the
Company shall be deemed not to have been made, all actions theretofore
taken under subsection (b)(i) or (b)(ii) above shall be deemed to be of no
effect, the Agent shall return any Revolving Credit Notes received from any
Non-Consenting Lender to such Non-Consenting Lender and all the rights and
obligations of the parties shall continue as if no such request had been
made.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain in
accordance with its usual practice an account or accounts evidencing the
indebtedness of each Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder in respect of Revolving Credit Advances. Each Borrower
agrees that upon request of any Lender to such Borrower (with a copy of
such notice to the Agent) that such Lender receive a Revolving Credit Note
to evidence (whether for purposes of pledge, enforcement or otherwise) the
Revolving Credit Advances owing to, or to be made by, such Lender, such
Borrower shall promptly execute and deliver to such Lender a Revolving
Credit Note payable to the order of such Lender in a principal amount up to
the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date
and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period
applicable thereto, (ii) the terms of each Assumption Agreement and each
Assignment and Acceptance delivered to and accepted by it, (iii) the amount
of any principal or interest due and payable or to become due and payable
from each Borrower to each Lender hereunder and (iv) the amount of any sum
received by the Agent from each Borrower hereunder and each Lender's share
thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrowers to, in the case of the Register, each Lender
and, in the case of such account or accounts, such Lender, under this
Agreement, absent manifest error; provided, however, that the failure of
the Agent or such Lender to make an entry, or any finding that an entry is
incorrect, in the Register or such account or accounts shall not limit or
otherwise affect the obligations of any Borrower under this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Sections
2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 1997.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting the Company or any of its Subsidiaries pending
or to the knowledge of the Company Threatened before any court,
governmental agency or arbitrator that (i) is reasonably likely to
have a Material Adverse Effect, other than the matters described on
Schedule 3.01(b) hereto (the "Disclosed Litigation") or (ii) purports
to affect the legality, validity or enforceability of this Agreement
or any Note of the Company or the consummation of the transactions
contemplated hereby, and there shall have been no adverse change in
the status, or financial effect on the Company or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) hereto.
(c) The Company shall have paid all accrued fees and expenses of
the Agent and the Lenders in respect of this Agreement.
(d) On the Effective Date, the following statements shall be true
and the Agent shall have received a certificate signed by a duly
authorized officer of the Company, dated the Effective Date, stating
that:
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(e) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory
to the Agent:
(i) The Revolving Credit Notes of the Company to the
order of the Lenders to the extent requested by any Lender
pursuant to Section 2.17.
(ii) Certified copies of the resolutions of the Board
of Directors of the Company approving this Agreement and the
Notes of the Company, and of all documents evidencing other
necessary corporate action and governmental approvals, if any,
with respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Company certifying the names and true signatures
of the officers of the Company authorized to sign this Agreement
and the Notes of the Company and the other documents to be
delivered hereunder.
(iv) Authenticated copies of the Certificate of
Incorporation and By-Laws of the Company.
(v) A favorable opinion of J. Xxxxxx Xxxxx, Senior
Counsel of the Company, substantially in the form of Exhibit G
hereto and as to such other matters as any Lender through the
Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Agent, substantially in the form of Exhibit I
hereto.
(vii) Such other approvals, opinions or documents as
any Lender, through the Agent, may reasonably request.
SECTION 3.02. Initial Loan to Each Designated Subsidiary. The
obligation of each Lender to make an initial Advance to each Designated
Subsidiary following any designation of such Designated Subsidiary as a
Borrower hereunder pursuant to Section 9.08 is subject to the Agent's
receipt on or before the date of such Initial Advance of each of the
following, in form and substance satisfactory to the Agent and dated such
date, and (except for the Revolving Credit Notes) in sufficient copies for
each Lender:
(a) The Revolving Credit Notes of such Borrower to the order of
the Lenders to the extent requested by any Lender pursuant to Section
2.17.
(b) Certified copies of the resolutions of the Board of Directors
of such Borrower (with a certified English translation if the original
thereof is not in English) approving this Agreement and the Notes of
such Borrower, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect to
this Agreement and such Notes.
(c) A certificate of the Secretary or an Assistant Secretary of
such Borrower certifying the names and true signatures of the officers
of such Borrower authorized to sign this Agreement and the Notes of
such Borrower and the other documents to be delivered hereunder.
(d) A certificate signed by a duly authorized officer of the
Company, dated as of the date of such Initial Advance, certifying that
such Borrower shall have obtained all governmental and third party
authorizations, consents, approvals (including exchange control
approvals) and licenses required under applicable laws and regulations
necessary for such Borrower to execute and deliver this Agreement and
the Notes and to perform its obligations thereunder.
(e) The Designation Letter of such Designated Subsidiary,
substantially in the form of Exhibit E hereto.
(f) Evidence of the Process Agent's acceptance of its appointment
pursuant to Section 9.13(a) as the agent of such Borrower,
substantially in the form of Exhibit F hereto.
(g) A favorable opinion of counsel to such Designated Subsidiary,
dated the date of such Initial Advance, substantially in the form of
Exhibit H hereto.
(h) Such other approvals, opinions or documents as any Lender,
through the Agent, may reasonably request.
SECTION 3.03. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance
on the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the
date of such Revolving Credit Borrowing (a) the following statements shall
be true (and each of the giving of the applicable Notice of Revolving
Credit Borrowing and the acceptance by the Borrower requesting such
Revolving Credit Borrowing of the proceeds of such Revolving Credit
Borrowing shall constitute a representation and warranty by such Borrower
that on the date of such Borrowing such statements are true):
(i) the representations and warranties of the Company contained
in Section 4.01 (except the representations set forth in the last
sentence of subsection (e) thereof and in subsections (f), (h)-(l) and
(n) thereof) are correct on and as of the date of such Revolving
Credit Borrowing, before and after giving effect to such Revolving
Credit Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, and additionally, if such
Revolving Credit Borrowing shall have been requested by a Designated
Subsidiary, the representations and warranties of such Designated
Subsidiary contained in its Designation Letter are correct on and as
of the date of such Revolving Credit Borrowing, before and after
giving effect to such Revolving Credit Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date, and
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom, that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.04. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such
Competitive Bid Advance as part of such Competitive Bid Borrowing is
subject to the conditions precedent that (i) the Agent shall have received
the written confirmatory Notice of Competitive Bid Borrowing with respect
thereto, (ii) on or before the date of such Competitive Bid Borrowing, but
prior to such Competitive Bid Borrowing, the Agent shall have received a
Competitive Bid Note payable to the order of such Lender and substantially
in the form of Exhibit A-2 hereto for each of the one or more Competitive
Bid Advances to be made by such Lender as part of such Competitive Bid
Borrowing, in a principal amount equal to the principal amount of the
Competitive Bid Advance to be evidenced thereby and otherwise on such terms
as were agreed to for such Competitive Bid Advance in accordance with
Section 2.03, and (iii) on the date of such Competitive Bid Borrowing the
following statements shall be true (and each of the giving of the
applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower requesting such Competitive Bid Borrowing of the proceeds of such
Competitive Bid Borrowing shall constitute a representation and warranty by
such Borrower that on the date of such Competitive Bid Borrowing such
statements are true):
(a) the representations and warranties of the Company contained
in Section 4.01 (except the representations set forth in the last
sentence of subsection (e) thereof and in subsections (f), (h)-(l) and
(n) thereof) are correct on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and, if such Competitive Bid Borrowing
shall have been requested by a Designated Subsidiary, the
representations and warranties of such Designated Subsidiary contained
in its Designation Letter are correct on and as of the date of such
Competitive Bid Borrowing, before and after giving effect to such
Competitive Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from
such Competitive Bid Borrowing or from the application of the proceeds
therefrom, that constitutes a Default, and
(c) no event has occurred and no circumstance exists as a result
of which the information concerning such Borrower that has been
provided to the Agent and each Lender by such Borrower in connection
herewith would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made,
not misleading,
and (iv) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.05. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Agent responsible for the transactions
contemplated by this Agreement shall have received notice from such Lender
prior to the date that the Company, by notice to the Lenders, designates as
the proposed Effective Date, specifying its objection thereto. The Agent
shall promptly notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Company. The
Company represents and warrants as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by the Company of
this Agreement and the Notes of the Company, and the consummation of
the transactions contemplated hereby, are within the Company's
corporate powers, have been duly authorized by all necessary corporate
action, and do not and will not cause or constitute a violation of any
provision of law or regulation or any provision of the Certificate of
Incorporation or By-Laws of the Company or result in the breach of, or
constitute a default or require any consent under, or result in the
creation of any lien, charge or encumbrance upon any of the
properties, revenues, or assets of the Company pursuant to, any
indenture or other agreement or instrument to which the Company is a
party or by which the Company or its property may be bound or
affected.
(c) No authorization, consent, approval (including any exchange
control approval), license or other action by, and no notice to or
filing or registration with, any governmental authority,
administrative agency or regulatory body or any other third party is
required for the due execution, delivery and performance by the
Company of this Agreement or the Notes of the Company.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Company.
This Agreement is, and each of the Notes of the Company when delivered
hereunder will be, the legal, valid and binding obligation of the
Company enforceable against the Company in accordance with their
respective terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally.
(e) The Consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at December 31, 1997, and the related
Consolidated statements of income and cash flows of the Company and
its Consolidated Subsidiaries for the fiscal year then ended (together
with the notes to the financial statements of the Company and its
Consolidated Subsidiaries and the Consolidated statements of cash
flows of the Company and its Consolidated Subsidiaries), accompanied
by an opinion of one or more nationally recognized firms of
independent public accountants, and the Consolidated balance sheet of
the Company and its Consolidated Subsidiaries as at June 30, 1998, and
the related Consolidated statements of income and cash flows of the
Company and its Consolidated Subsidiaries for the six months then
ended, duly certified by the principal financial officer of the
Company, copies of which have been furnished to each Lender, are
materially complete and correct, and fairly present, subject, in the
case of said balance sheet as at June 30, 1998, and said statements of
income and cash flows for the six months then ended, to year-end audit
adjustments, the Consolidated financial condition of the Company and
its Consolidated Subsidiaries as at such dates and the Consolidated
results of the operations of the Company and its Consolidated
Subsidiaries for the periods ended on such dates, all in accordance
with GAAP consistently applied, except as otherwise noted therein; the
Company and its Consolidated Subsidiaries do not have on such date any
material contingent liabilities, liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments, except as referred to or reflected
or provided for in such balance sheet or the notes thereto as at such
date. Since December 31, 1997, there has been no Material Adverse
Change.
(f) There is no action, suit, investigation, litigation or
proceeding, including, without limitation, any Environmental Action,
pending or to the knowledge of the Company Threatened affecting the
Company or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) is reasonably likely to have a Material
Adverse Effect (other than the Disclosed Litigation), or (ii) purports
to affect the legality, validity or enforceability of this Agreement
or any Note or the consummation of the transactions contemplated
hereby, and there has been no adverse change in the status, or
financial effect on the Company or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(b) hereto.
(g) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the
Borrower of such Advance or of such Borrower and its Subsidiaries on a
Consolidated basis) subject to the provisions of Section 5.02(a) or
subject to any restriction contained in any agreement or instrument
between such Borrower and any Lender or any Affiliate of any Lender
relating to Debt and within the scope of Section 6.01(e) will be
margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System).
(h) The Company and each wholly-owned direct Subsidiary of the
Company have, in the aggregate, met their minimum funding requirements
under ERISA with respect to their Plans in all material respects and
have not incurred any material liability to the PBGC, other than for
the payment of premiums, in connection with such Plans.
(i) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan of the Company or any of its ERISA
Affiliates that has resulted in or is reasonably likely to result in a
material liability of the Company or any of its ERISA Affiliates.
(j) The Schedules B (Actuarial Information) to the [1997] annual
reports (Form 5500 Series) with respect to each Plan of the Company or
any of its ERISA Affiliates, copies of which have been filed with the
Internal Revenue Service (and which will be furnished to any Bank
through the Administrative Agent upon the request of such Bank through
the Administrative Agent to the Company), are complete and accurate in
all material respects and fairly present in all material respects the
funding status of such Plans at such date, and since the date of each
such Schedule B there has been no material adverse change in funding
status.
(k) Neither the Company nor any of its ERISA Affiliates has
incurred or reasonably expects to incur any Withdrawal Liability to
any Multiemployer Plan in an annual amount exceeding 6% of Net
Tangible Assets of the Company and its Consolidated Subsidiaries.
(l) Neither the Company nor any of its ERISA Affiliates has been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA. No such Multiemployer Plan is
reasonably expected to be in reorganization or to be terminated,
within the meaning of Title IV of ERISA, in a reorganization or
termination which might reasonably be expected to result in a
liability of the Company in an amount in excess of $5,000,000.
(m) The Company is not, and immediately after the application by
the Company of the proceeds of each Loan will not be, (a) an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or (b) a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(n) To the best of the Company's knowledge, the operations and
properties of the Company and its Subsidiaries taken as a whole comply
in all material respects with all Environmental Laws, all necessary
Environmental Permits have been applied for or have been obtained and
are in effect for the operations and properties of the Company and its
Subsidiaries and the Company and its Subsidiaries are in compliance in
all material respects with all such Environmental Permits. To the best
of the Company's knowledge no circumstances exist that would be
reasonably likely to form the basis of an Environmental Action against
the Company or any of its Subsidiaries or any of their properties that
could have a Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the
Company will:
(a) Compliance with Laws, Etc. Comply, and cause each Designated
Subsidiary to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance
with ERISA and Environmental Laws as provided in Section 5.01(j), if
failure to comply with such requirements would have a Material Adverse
Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
Designated Subsidiary to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or on its income or
profits or upon any of its property; provided, however, that neither
the Company nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained.
(c) Maintenance of Insurance. Maintain, and cause each Designated
Subsidiary to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Company or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each Designated Subsidiary to preserve and
maintain, its corporate existence and all its material rights (charter
and statutory) privileges and franchises; provided, however, that the
Company and each Designated Subsidiary may consummate any merger,
consolidation or sale of assets permitted under Section 5.02(b).
(e) Visitation Rights. At any reasonable time and from time to
time, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Company and any Designated Subsidiary, and to discuss the affairs,
finances and accounts of the Company and any Designated Subsidiary
with any of their officers or directors and with their independent
certified public accountants.
(f) Keeping of Books. Keep, and cause each Designated Subsidiary
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Company and each Designated Subsidiary in accordance
with generally accepted accounting principles in effect from time to
time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each Designated Subsidiary to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted;
provided, however, that neither the Company nor any of its Designated
Subsidiaries shall be required to maintain or preserve any property if
the failure to maintain or preserve such property shall not have a
Material Adverse Effect.
(h) Reporting Requirements. Furnish to the Agent (with a copy for
each Lender) and the Agent shall promptly forward the same to the
Lenders:
(i) as soon as available and in any event within 60
days after the end of each of the first three quarters of each
fiscal year of the Company, a Consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such
quarter and a Consolidated statement of income and cash flows of
the Company and its Consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with
the end of such quarter, setting forth in each case in
comparative form the corresponding figures as of the
corresponding date and for the corresponding period of the
preceding fiscal year, all in reasonable detail and certified by
the principal financial officer, principal accounting officer,
the Vice-President and Treasurer or an Assistant Treasurer of the
Company, subject, however, to year-end auditing adjustments,
which certificate shall include a statement that such officer has
no knowledge, except as specifically stated, of any condition,
event or act which constitutes a Default;
(ii) as soon as available and in any event within 120
days after the end of each fiscal year of the Company, a
Consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
Consolidated statements of income and cash flows of the Company
and its Consolidated Subsidiaries for such fiscal year setting
forth in each case in comparative form the corresponding figures
as of the close of and for the preceding fiscal year, all in
reasonable detail and accompanied by an opinion of independent
public accountants of nationally recognized standing, as to said
financial statements and a certificate of the principal financial
officer, principal accounting officer, the Vice-President and
Treasurer or an Assistant Treasurer of the Company stating that
such officer has no knowledge, except as specifically stated, of
any condition, event or act which constitutes a Default;
(iii) copies of the Forms 8-K and 10-K reports (or
similar reports) which the Company is required to file with the
Securities and Exchange Commission of the United States of
America, promptly after the filing thereof;
(iv) copies of each annual report, quarterly report,
special report or proxy statement mailed to substantially all of
the stockholders of the Company, promptly after the mailing
thereof to the stockholders;
(v) immediate notice of the occurrence of any Default
of which the principal financial officer, principal accounting
officer, the Vice-President and Treasurer or an Assistant
Treasurer of the Company shall have knowledge;
(vi) as soon as available and in any event within 15
days after the Company or any of its ERISA Affiliates knows or
has reason to know that any ERISA Event has occurred, a statement
of a senior officer of the Company with responsibility for
compliance with the requirements of ERISA describing such ERISA
Event and the action, if any, which the Company or such ERISA
Affiliate proposes to take with respect thereto;
(vii) at the request of any Lender, promptly after the
filing thereof with the Internal Revenue Service, copies of
Schedule B (Actuarial Information) to each annual report (Form
5500 series) filed by the Company or any of its ERISA Affiliates
with respect to each Plan;
(viii) promptly after receipt thereof by the Company or
any of its ERISA Affiliates, copies of each notice from the PBGC
stating its intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(ix) promptly after such request, such other documents
and information relating to any Plan as any Lender may reasonably
request from time to time;
(x) promptly and in any event within five Business Days
after receipt thereof by the Company or any of its ERISA
Affiliates from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) (x) the imposition of Withdrawal
Liability in an amount in excess of $5,000,000 with respect to
any one Multiemployer Plan or in an aggregate amount in excess of
$25,000,000 with respect to all such Multiemployer Plans within
any one calendar year or (y) the reorganization or termination,
within the meaning of Title IV of ERISA, of any Multiemployer
Plan that has resulted or might reasonably be expected to result
in Withdrawal Liability in an amount in excess of $5,000,000 or
of all such Multiemployer Plans that has resulted or might
reasonably be expected to result in Withdrawal Liability in an
aggregate amount in excess of $25,000,000 within any one calendar
year and (B) the amount of liability incurred, or that may be
incurred, by the Company or any of its ERISA Affiliates in
connection with any event described in such subclause (x) or (y);
(xi) promptly after the commencement thereof, notice of
all actions and proceedings before any court, governmental agency
or arbitrator affecting the Borrower or any Designated Subsidiary
of the type described in Section 4.01(f); and
(xii) from time to time such further information
respecting the financial condition and operations of the Company
and its Subsidiaries as any Lender may from time to time
reasonably request.
(i) Authorizations. Obtain, and cause each Designated Subsidiary
to obtain, at any time and from time to time all authorizations,
licenses, consents or approvals (including exchange control approvals)
as shall now or hereafter be necessary or desirable under applicable
law or regulations in connection with its making and performance of
this Agreement and, upon the request of any Lender, promptly furnish
to such Lender copies thereof.
(j) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply, in all material respects, with all
applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiaries to obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that
neither the Company nor any of its Subsidiaries shall be required to
undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith
and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances.
(k) Change of Control. If a Change of Control shall occur, within
ten calendar days after the occurrence thereof, provide the Agent with
notice thereof, describing therein in reasonable detail the facts and
circumstances giving rise to such Change in Control.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the
Company will not:
(a) Liens, Etc. Issue, assume or guarantee, or permit any of its
Subsidiaries owning Restricted Property to issue, assume or guarantee,
any Debt secured by Liens on or with respect to any Restricted
Property without effectively providing that its obligations to the
Lenders under this Agreement and any of the Notes shall be secured
equally and ratably with such Debt so long as such Debt shall be so
secured, except that the foregoing shall not apply to:
(i) Liens affecting property of the Company or any of
its Subsidiaries existing on the Effective Date in effect as of
the date hereof or of any corporation existing at the time it
becomes a Subsidiary of the Company or at the time it is merged
into or consolidated with the Company or a Subsidiary of the
Company;
(ii) Liens on property of the Company or its
Subsidiaries existing at the time of acquisition thereof or
incurred to secure the payment of all or part of the purchase
price thereof or to secure Debt incurred prior to, at the time of
or within 24 months after acquisition thereof for the purpose of
financing all or part of the purchase price thereof;
(iii) Liens on property of the Company or its
Subsidiaries (in the case of property that is, in the opinion of
the Board of Directors of the Company, substantially unimproved
for the use intended by the Company) to secure all or part of the
cost of improvement thereof, or to secure Debt incurred to
provide funds for any such purpose;
(iv) Liens which secure only Debt owing by a Subsidiary
of the Company to the Company or to another Subsidiary of the
Company;
(v) Liens in favor of the United States of America, any
State, any foreign country, or any department, agency,
instrumentality, or political subdivisions of any such
jurisdiction, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
Debt incurred for the purpose of financing all or any part of the
purchase price or cost of constructing or improving the property
subject thereto, including, without limitation, Liens to secure
Debt of the pollution control or industrial revenue bond type; or
(vi) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in
part, of any Lien referred to in the foregoing clauses (i) to (v)
inclusive of any Debt secured thereby, provided that the
principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension,
renewal or replacement Lien shall be limited to all or part of
the property which secured the Lien extended, renewed or replaced
(plus improvements on such property);
provided, however, that, the Company and any one or more Subsidiaries
owning Restricted Property may issue, assume or guarantee Debt secured
by Liens which would otherwise be subject to the foregoing
restrictions in an aggregate principal amount which, together with the
aggregate outstanding principal amount of all other Debt of the
Company and its Subsidiaries owning Restricted Property that would
otherwise be subject to the foregoing restrictions (not including Debt
permitted to be secured under clause (i) through (vi) above) and the
aggregate value of the Sale and Leaseback Transactions in existence at
such time, does not at any one time exceed 10% of the Net Tangible
Assets of the Company and its Consolidated Subsidiaries; and provided
further that the following type of transaction, among others, shall
not be deemed to create Debt secured by Liens: Liens required by any
contract or statute in order to permit the Company or any of its
Subsidiaries to perform any contract or subcontract made by it with or
at the request of the United States of America, any foreign country or
any department, agency or instrumentality of any of the foregoing
jurisdictions.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to, any Person; provided,
however, that the Company may merge or consolidate with any other
Person so long as the Company is the surviving corporation and so long
as no Default shall have occurred and be continuing at the time of
such proposed transaction or would result therefrom.
(c) Minimum Net Worth. At any time, permit the amount of
Consolidated total assets in excess of Consolidated total liabilities
to be less than $3,100,000,000.
(d) Indebtedness of Domestic Subsidiaries. Permit the amount of
Debt incurred by its Domestic Subsidiaries to exceed $500,000,000;
provided, however, that the following shall not be included in
determining compliance with this Section 5.02(d):
(i) Debt of a Domestic Subsidiary of the Company owed
to the Company or another Subsidiary of the Company;
(ii) Debt existing on the Effective Date (the "Existing
Debt"), and any Debt extending the maturity of, or renewing or
replacing (or successive extensions, renewals or replacements),
in whole or in part, such Debt; and
(iii) Debt incurred by a Domestic Subsidiary of the
Company prior to the date it became a Subsidiary of the Company
(and any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole of in part
thereof).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Any Borrower shall fail to pay: (i) any principal of any
Advance when the same becomes due and payable; (ii) any facility fees,
utilization fees or any interest on any Advance payable under this
Agreement or any Note within three Business Days after the same
becomes due and payable; or (iii) any other fees or other amounts
payable under this Agreement or any Notes within 30 days after the
same becomes due and payable other than those fees and amounts the
liabilities for which are being contested in good faith by such
Borrower and which have been placed in Escrow by such Borrower; or
(b) Any representation or warranty made (or deemed made) by any
Borrower (or any of its officers) in connection with this Agreement or
by any Designated Subsidiary in the Designation Letter pursuant to
which such Designated Subsidiary became a Borrower hereunder shall
prove to have been incorrect in any material respect when made (or
deemed made); or
(c) The Company shall repudiate its obligations under, or shall
default in the due performance or observance of, any term, covenant or
agreement contained in Article VII of this Agreement; or
(d) (i) The Company shall fail to perform or observe any other
term, covenant or agreement contained in Section 5.02(a) or (c) and
such failure shall remain unremedied for a period of 30 days after any
Lender shall have given notice thereof to the Company (through the
Agent), or (ii) the Company or any other Borrower shall fail to
perform or to observe any other term, covenant or agreement contained
in this Agreement on its part to be performed or observed and such
failure shall remain unremedied for a period of 30 days after any
Lender shall have given notice thereof to the relevant Borrower or, in
the case of the Company, any of the principal financial officer, the
principal accounting officer, the Vice-President and Treasurer or an
Assistant Treasurer of the Company, and in the case of any other
Borrower, a responsible officer of such Borrower, first has knowledge
of such failure; or
(e) (i) The Company or any of its Consolidated or Designated
Subsidiaries shall fail to pay any principal of or premium or interest
on any Debt (other than Debt owed to the Company or its Subsidiaries
or Affiliates) that is outstanding in a principal amount of at least
$100,000,000 in the aggregate (but excluding Debt outstanding
hereunder and Debt owed by such party to any bank, financial
institution or other institutional lender to the extent the Borrower
or any Subsidiary has deposits with such bank, financial institution
or other institutional lender sufficient to repay such Debt) of the
Company or such Subsidiary (as the case may be), when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt, or (ii) any other event shall
occur or condition shall exist under any agreement or instrument
relating to any such Debt and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if
the effect of such event or condition is to accelerate, or to permit
the acceleration of, the maturity of such Debt, or (iii) any such Debt
shall be declared to be due and payable, or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; provided, however, that,
for purposes of this Section 6.0l(e), in the case of (x) Debt of any
Person (other than the Company or one of its Consolidated
Subsidiaries) which the Company has guaranteed and (y) Debt of Persons
(other than the Company or one of its Consolidated Subsidiaries) the
payment of which is secured by a Lien on property of the Company or
such Subsidiary, such Debt shall be deemed to have not been paid when
due or to have been declared to be due and payable only when the
Company or such Subsidiary, as the case may be, shall have failed to
pay when due any amount which it shall be obligated to pay with
respect to such Debt; provided further, however, that any event or
occurrence described in this subsection (e) shall not be an Event of
Default if (A) such event or occurrence relates to the Debt of any
Subsidiary of the Company located in China, India, the Commonwealth of
Independent States or Turkey (collectively, the "Exempt Countries"),
(B) such Debt is not guaranteed or supported in any legally
enforceable manner by any Borrower or by any Subsidiary or Affiliate
of the Company located outside the Exempt Countries, (C) such event or
occurrence is due to the direct or indirect action of any government
entity or agency in any Exempt Country and (D) as of the last day of
the calendar quarter immediately preceding such event or occurrence,
the book value of the assets of such Subsidiary does not exceed
$80,000,000 and the aggregate book value of the assets of all
Subsidiaries of the Company located in Exempt Countries the Debt of
which would cause an Event of Default to occur but for the effect of
this proviso does not exceed $300,000,000; or
(f) The Company or any of its Designated or Consolidated
Subsidiaries shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the
Company or any such Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or
its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order
for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 30 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Company or any
such Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); provided, however,
that any event or occurrence described in this subsection (f) shall
not be an Event of Default if (A) such event or occurrence relates to
any Subsidiary of the Company located in an Exempt Country, (B) the
Debt of such Subsidiary is not guaranteed or supported in any legally
enforceable manner by any Borrower or by any Subsidiary or Affiliate
of the Company located outside the Exempt Countries, (C) such event or
occurrence is due to the direct or indirect action of any government
entity or agency in any Exempt Country and (D) as of the last day of
the calendar quarter immediately preceding such event or occurrence,
the book value of the assets of such Subsidiary does not exceed
$80,000,000 and the aggregate book value of the assets of all
Subsidiaries of the Company located in Exempt Countries with respect
to which the happening of the events or occurrences described in this
subsection (f) would cause an Event of Default to occur but for the
effect of this proviso does not exceed $300,000,000; or
(g) Any judgment or order for the payment of money in excess of
$100,000,000 shall be rendered against the Company or any of its
Subsidiaries and enforcement proceedings shall have been commenced by
any creditor upon such judgment or order and there shall be any period
of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order
shall not be an Event of Default under this Section 6.01(g) if (A)
such judgment or order is rendered against any Subsidiary of the
Company located in an Exempt Country, (B) the Debt of such Subsidiary
is not guaranteed or supported in any legally enforceable manner by
any Borrower or by any Subsidiary or Affiliate of the Company located
outside the Exempt Countries, (C) such judgment or order is due to the
direct or indirect action of any government entity or agency in any
Exempt Country and (D) as of the last day of the calendar quarter
immediately preceding the tenth consecutive day of the stay period
referred to above, the book value of the assets of such Subsidiary
does not exceed $80,000,000 and the aggregate book value of the assets
of all Subsidiaries of the Company located in Exempt Countries the
judgments and orders against which would cause an Event of Default to
occur but for the effect of this proviso does not exceed $300,000,000;
or
(h) Any non-monetary judgment or order shall be rendered against
the Company or any of its Subsidiaries that is reasonably likely to
have a Material Adverse Effect, and enforcement proceedings shall have
been commenced by any Person upon such judgment or order and there
shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(i) Any license, consent, authorization or approval (including
exchange control approvals) now or hereafter necessary to enable the
Company or any Designated Subsidiary to comply with its obligations
herein or under any Notes of such Borrower shall be modified, revoked,
withdrawn, withheld or suspended; or
(j) (i) Any ERISA Event shall have occurred with respect to a
Plan of any Borrower or any of its ERISA Affiliates and the sum
(determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other
Plans of the Borrowers and their ERISA Affiliates with respect to
which an ERISA Event shall have occurred and then exist (or the
liability of the Borrowers and their ERISA Affiliates related to such
ERISA Event) exceeds $100,000,000; or (ii) any Borrower or any of its
ERISA Affiliates shall be in default, as defined in Section 4219(c)(5)
of ERISA, with respect to any payment of Withdrawal Liability and the
sum of the outstanding balance of such Withdrawal Liability and the
outstanding balance of any other Withdrawal Liability that any
Borrower or any of its ERISA Affiliates has incurred exceeds 6% of Net
Tangible Assets of the Company and its Consolidated Subsidiaries; or
(iii) any Borrower or any of its ERISA Affiliates shall have been
notified by the sponsor of a Multiemployer Plan of such Borrower or
any of its ERISA Affiliates that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV
of ERISA, and as a result of such reorganization or termination the
aggregate annual contributions of the Borrowers and their ERISA
Affiliates to all Multiemployer Plans that are then in reorganization
or being terminated have been or will be increased over the amounts
contributed to such Multiemployer Plans for the plan years of such
Multiemployer Plans immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$100,000,000; or
then, and (i) in any such event (except as provided in clause (ii) below),
the Agent (A) shall at the request, or may with the consent, of the
Majority Lenders, by notice to the Company, declare the obligation of each
Lender to make Advances to be terminated, whereupon the same shall
forthwith terminate, and (B) shall at the request, or may with the consent,
of the Majority Lenders, by notice to the Company, declare the Advances,
all interest thereon and all other amounts payable under this Agreement to
be forthwith due and payable, whereupon the Advances, all such interest and
all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrowers and (ii) in the case of the
occurrence of any Event of Default described in clause (i) or (ii) of
Section 6.01(a), the Agent shall, at the request, or may with the consent,
of the Lenders which have made or assumed under this Agreement at least
66-2/3% of the aggregate principal amount (based in respect of Competitive
Bid Advances denominated in Foreign Currencies on the Equivalent in Dollars
on the date of such request) of Competitive Bid Advances then outstanding
and to whom such Advances are owed, by notice to the Company, declare the
full unpaid principal of and accrued interest on all Competitive Bid
Advances hereunder and all other obligations of the Borrowers hereunder to
be immediately due and payable, whereupon such Advances and such
obligations shall be immediately due and payable, without presentment,
demand, protest or other further notice of any kind, all of which are
hereby expressly waived by the Borrowers; provided, however, that in the
event of an actual or deemed entry of an order for relief with respect to
any Borrower under the United States Bankruptcy Code of 1978, as amended,
(x) the obligation of each Lender to make Advances shall automatically be
terminated and (y) the Advances, all such interest and all such amounts
shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrowers.
ARTICLE VII
GUARANTEE
SECTION 7.01. Unconditional Guarantee. For valuable
consideration, receipt whereof is hereby acknowledged, and to induce each
Lender to make Advances to the Designated Subsidiaries and to induce the
Agent to act hereunder, the Company hereby unconditionally and irrevocably
guarantees to each Lender and the Agent that:
(a) the principal of and interest on each Advance to each
Designated Subsidiary shall be promptly paid in full when due (whether
at stated maturity, by acceleration or otherwise) in accordance with
the terms hereof, and, in case of any extension of time of payment, in
whole or in part, of such Advance, that all such sums shall be
promptly paid when due (whether at stated maturity, by acceleration or
otherwise) in accordance with the terms of such extension; and
(b) all other amounts payable hereunder by any Designated
Subsidiary to any Lender or the Agent or the Sub-Agent, as the case
may be, shall be promptly paid in full when due in accordance with the
terms hereof (the obligations of the Designated Subsidiaries under
these subsections (a) and (b) of this Section 7.01 being the
"Obligations").
In addition, the Company hereby unconditionally and irrevocably agrees that
upon default in the payment when due (whether at stated maturity, by
acceleration or otherwise) of any principal of, or interest on, any Advance
to any Designated Subsidiary or such other amounts payable by any
Designated Subsidiary to any Lender or the Agent, the Company will
forthwith pay the same, without further notice or demand.
SECTION 7.02. Guarantee Absolute. The Company guarantees that the
Obligations will be paid strictly in accordance with the terms of this
Agreement, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender or the Agent with respect thereto. The liability of the Company
under this guarantee shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of this Agreement or
any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from this Agreement
(including, without limitation, any extension of the Termination Date
pursuant to Section 2.16);
(c) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Company, any Borrower or
a guarantor.
This guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Obligations is rescinded
or must otherwise be returned by any of the Lenders or the Agent upon the
insolvency, bankruptcy or reorganization of the Company or any Borrower or
otherwise, all as though such payment had not been made.
SECTION 7.03. Waivers. The Company hereby expressly waives
diligence, presentment, demand for payment, protest, any requirement that
any right or power be exhausted or any action be taken against any
Designated Subsidiary or against any other guarantor of all or any portion
of the Advances, and all other notices and demands whatsoever.
SECTION 7.04. Remedies. Each of the Lenders and the Agent may
pursue its respective rights and remedies under this Article VII and shall
be entitled to payment hereunder notwithstanding any other guarantee of all
or any part of the Advances to the Designated Subsidiaries, and
notwithstanding any action taken by any such Lender or the Agent to enforce
any of its rights or remedies under such other guarantee, or any payment
received thereunder. The Company hereby irrevocably waives any claim or
other right that it may now or hereafter acquire against any Designated
Subsidiary that arises from the existence, payment, performance or
enforcement of the Company's obligations under this Article VII, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim
or remedy of the Agent or the Lenders against any Designated Subsidiary,
whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right
to take or receive from the Designated Subsidiary, directly or indirectly,
in cash or other property or by set-off or in any other manner, payment or
security on account of such claim, remedy or right. If any amount shall be
paid to the Company in violation of the preceding sentence at any time when
all the Obligations shall not have been paid in full, such amount shall be
held in trust for the benefit of the Lenders and the Agent and shall
forthwith be paid to the Agent for its own account and the accounts of the
respective Lenders to be credited and applied to the Obligations, whether
matured or unmatured, in accordance with the terms of this Agreement, or to
be held as collateral for any Obligations or other amounts payable under
this Agreement thereafter arising. The Company acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by this Agreement and that the waiver set forth in this
section is knowingly made in contemplation of such benefits.
SECTION 7.05. No Stay. The Company agrees that, as between (a)
the Company and (b) the Lenders and the Agent, the Obligations of any
Designated Subsidiary guaranteed by the Company hereunder may be declared
to be forthwith due and payable as provided in Article VI hereof for
purposes of this Article VII by declaration to the Company as guarantor
notwithstanding any stay, injunction or other prohibition preventing such
declaration as against such Designated Subsidiary and that, in the event of
such declaration to the Company as guarantor, such Obligations (whether or
not due and payable by such Designated Subsidiary), shall forthwith become
due and payable by the Company for purposes of this Article VII.
SECTION 7.06. Survival. This guarantee is a continuing guarantee
and shall (a) remain in full force and effect until payment in full (after
the Termination Date) of the Obligations and all other amounts payable
under this guaranty, (b) be binding upon the Company, its successors and
assigns, (c) inure to the benefit of and be enforceable by each Lender
(including each Assuming Lender and each assignee Lender pursuant to
Section 9.07) and the Agent and their respective successors, transferees
and assigns and (d) shall be reinstated if at any time any payment to a
Lender or the Agent hereunder is required to be restored by such Lender or
the Agent. Without limiting the generality of the foregoing clause (c),
each Lender may assign or otherwise transfer its interest in any Advance to
any other person or entity, and such other person or entity shall thereupon
become vested with all the rights in respect thereof granted to such Lender
herein or otherwise.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Lenders, and
such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to
this Agreement or applicable law. The Agent agrees to give to each Lender
prompt notice of each notice given to it by any Borrower pursuant to the
terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Agent: (a) may treat the Lender that made any Advance as the holder of the
Debt resulting therefrom until the Agent receives and accepts an Assignment
and Acceptance entered into by such Lender, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 9.07; (b) may consult with
legal counsel (including counsel for the Company), independent public
accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender and shall not be responsible to
any Lender for any statements, warranties or representations (whether
written or oral) made in or in connection with this Agreement; (d) shall
not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement
on the part of any Borrower or to inspect the property (including the books
and records) of any Borrower; (e) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (f) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telecopier, telegram or
telex) believed by it to be genuine and signed or sent by the proper party
or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank
shall have the same rights and powers under this Agreement as any other
Lender and may exercise the same as though it were not the Agent; and the
term "Lender" or "Lenders" shall, unless otherwise expressly indicated,
include Citibank in its individual capacity. Citibank and its Affiliates
may accept deposits from, lend money to, act as trustee under indentures
of, accept investment banking engagements from and generally engage in any
kind of business with, the Company, any of its Subsidiaries and any Person
who may do business with or own securities of the Company or any such
Subsidiary, all as if Citibank were not the Agent and without any duty to
account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01
and such other 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 Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by a Borrower), ratably according to
the respective principal amounts of the Revolving Credit Notes then held by
each of them (or if no Revolving Credit Notes are at the time outstanding
or if any Revolving Credit Notes are held by Persons that are not Lenders,
ratably according to the respective amounts of their Commitments), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against
the Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Agent under this Agreement, provided that no
Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by a Borrower.
SECTION 8.06. Successor Agent. The Agent may resign at any time
by giving written notice thereof to the Lenders and the Company and may be
removed at any time with or without cause by the Majority Lenders. The
Company may at any time, by notice to the Agent, propose a successor Agent
(which shall meet the criteria described below) specified in such notice
and request that the Lenders be notified thereof by the Agent with a view
to their removal of the Agent and their appointment of such successor
Agent; the Agent agrees to forward any such notice to the Lenders promptly
upon its receipt by the Agent. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Majority Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Majority Lenders' removal of
the retiring Agent, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having
a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
under this Agreement. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article VIII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION 8.07. Sub-Agent. The Sub-Agent has been designated under
this Agreement to carry out duties of the Agent. The Sub-Agent shall be
subject to each of the obligations in this Agreement to be performed by the
Sub-Agent, and each of the Borrowers and the Lenders agrees that the
Sub-Agent shall be entitled to exercise each of the rights and shall be
entitled to each of the benefits of the Agent under this Agreement as
relate to the performance of its obligations hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to
any departure by any Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Majority Lenders, and
then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no amendment, waiver or consent shall, unless in writing and signed by
all the Lenders, do any of the following: (a) increase the Commitments of
the Lenders or subject the Lenders to any additional obligations, (b)
reduce the principal of, or interest on, the Revolving Credit Advances or
any fees or other amounts payable hereunder, (c) postpone any date fixed
for any payment of principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder (other than as
permitted by Section 2.16 to the extent any Lender consents thereunder),
(d) release the Company from any of its obligations under Article VII or
(e) require the duration of an Interest Period to be nine months if such
period is not available to all Lenders; and provided further that no
amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to the Lenders required above to take such action, affect
the rights or duties of the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier,
telegraphic or telex communication) and mailed (return receipt requested),
telecopied, telegraphed, telexed or delivered, if to the Company or to any
Designated Subsidiary, at the Company's address at 000 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, Attention: Assistant Treasurer; if to
any Initial Lender, at its Domestic Lending Office specified opposite its
name on Schedule I hereto; if to any other Lender, at its Domestic Lending
Office specified in the Assumption Agreement or the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Agent, at
its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000, Attention: Bank
Loan Syndications Department, with a copy to 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: _______________; or, as to any Borrower or the
Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to
the Company and the Agent. All such notices and communications shall, when
mailed, telecopied, telegraphed or telexed, be effective when deposited in
the mails, telecopied, delivered to the telegraph company or confirmed by
telex answerback, respectively, except that notices and communications to
the Agent pursuant to Article II, III or VIII shall not be effective until
received by the Agent. Delivery by telecopier of an executed counterpart of
any amendment or waiver of any provision of this Agreement or the Notes or
of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided
by law.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to pay
on demand all costs and expenses of the Agent in connection with the
administration, modification and amendment of this Agreement, the Notes and
the other documents to be delivered hereunder, including, without
limitation, (i) all due diligence, syndication (including printing,
distribution and bank meetings), transportation, computer, duplication,
appraisal, consultant, and audit expenses and (ii) the reasonable fees and
expenses of counsel for the Agent with respect thereto. The Company further
agrees to pay on demand all costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the Notes
and the other documents to be delivered hereunder, including, without
limitation, reasonable fees and expenses of counsel for the Agent and each
Lender in connection with the enforcement of rights under this Section
9.04(a).
(b) Each Borrower agrees to indemnify and hold harmless the Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel)
that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of,
or in connection with the preparation for a defense of, any investigation,
litigation or proceeding arising out of, related to or in connection with
the Notes, this Agreement, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Advances whether or not
such investigation, litigation or proceeding is brought by the Company, its
directors, shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated, except to the
extent any such claim, damage, loss, liability or expense has resulted from
such Indemnified Party's gross negligence or willful misconduct. The
Company also agrees not to assert any claim against any Indemnified Party
on any theory of liability for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use
of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Advance or LIBO Rate Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion pursuant to
Section 2.03(d), 2.05(b), 2.09(a) or (b), 2.11 or 2.16, acceleration of the
maturity of the Notes pursuant to Section 6.01 or for any other reason, the
Borrower shall, upon demand by such Lender (with a copy of such demand to
the Agent), pay to the Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by any Lender to fund
or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.10, 2.13 and 9.04 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under
the Notes and the termination in whole of any Commitment hereunder.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates 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 or such Affiliate to or for
the credit or the account of any Borrower against any and all of the
obligations of such Borrower now or hereafter existing under this Agreement
and the Note of such Borrower held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender agrees promptly to
notify the relevant Borrower after any such set-off and application,
provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender
and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become
effective upon satisfaction of the conditions precedent set forth in
Section 3.01) when it shall have been executed by the Company and the Agent
and when the Agent shall have been notified by each Initial Lender that
such Initial Lender has executed it and thereafter shall be binding upon
and inure to the benefit of each Borrower, the Agent and each Lender and
their respective successors and assigns, except that no Borrower shall not
have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
at any time, with notice to the Company prior to making any proposal to any
potential assignee and with the consent of the Company, which consent shall
not be unreasonably withheld (and shall at any time, if requested to do so
by the Company pursuant to Section 2.05(b), 2.10 or 2.13) assign to one or
more Persons all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its
Commitment, the Revolving Credit Advances owing to it and the Revolving
Credit Note or Notes held by it); provided, however, that (i) the Company's
consent shall not be required (A) in the case of an assignment to an
Affiliate of such Lender, provided that notice thereof shall have been
given to the Company and the Agent, or (B) in the case of an assignment of
the type described in subsection (g) below; (ii) each such assignment shall
be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any right to make Competitive
Bid Advances, Competitive Bid Advances owing to it and Competitive Bid
Notes); (iii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of
the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 or
an integral multiple of $1,000,000 in excess thereof; (iv) each such
assignment shall be to an Eligible Assignee; and (v) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance
and recording in the Register, an Assignment and Acceptance, together with
a processing and recordation fee of $3,500 and, if the assigning Lender is
not retaining a Commitment hereunder, any Revolving Credit Note subject to
such assignment. Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations
of a Lender hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and 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, provided, however, that such assigning
Lender's rights under Sections 2.10, 2.13 and 9.04, and its obligations
under Section 8.05, shall survive such assignment as to matters occurring
prior to the effective date of such assignment).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, 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 any other instrument or document furnished pursuant
hereto or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of any Borrower or the performance or observance by
such Borrower of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance
upon the 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; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained
therein in the Register and (iii) give prompt notice thereof to the Company
and to each other Borrower.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and the Commitment
of, and principal amount of the Advances owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Company, each
other Borrower, the Agent and the Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Company,
any other Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Company or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and any Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Company and the other Borrowers
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for
all purposes of this Agreement, (iv) the Company, any other Borrower, the
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement, (v) no participant under any such participation shall have
any right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by any Borrower
therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of,
or interest on, the Notes or any fees or other amounts payable hereunder,
in each case to the extent subject to such participation and (vi) within 30
days of the effective date of such participation, such Lender shall provide
notice of such participation to the Company.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee or participant or proposed assignee
or participant, any information relating to the Company or any Borrower
furnished to such Lender by or on behalf of such Borrower; provided that,
prior to any such disclosure, the assignee or participant or proposed
assignee or participant shall agree to preserve the confidentiality of any
confidential information relating to such Borrower received by it from such
Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and any Note or Notes held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
SECTION 9.08. Designated Subsidiaries. (a) Designation. The
Company may at any time, and from time to time, by delivery to the Agent of
a Designation Letter duly executed by the Company and the respective
Subsidiary and substantially in the form of Exhibit E hereto, designate
such Subsidiary as a "Designated Subsidiary" for purposes of this Agreement
and such Subsidiary shall thereupon become a "Designated Subsidiary" for
purposes of this Agreement and, as such, shall have all of the rights and
obligations of a Borrower hereunder. The Agent shall promptly notify each
Lender of each such designation by the Company and the identity of the
respective Subsidiary.
(b) Termination. Upon the payment and performance in full of all
of the indebtedness, liabilities and obligations under this Agreement and
the Notes of any Designated Subsidiary then, so long as at the time no
Notice of Revolving Credit Borrowing or Notice of Competitive Bid Borrowing
in respect of such Designated Subsidiary is outstanding, such Subsidiary's
status as a "Designated Subsidiary" shall terminate upon notice to such
effect from the Agent to the Lenders (which notice the Agent shall give
promptly upon its receipt of a request therefor from the Company).
Thereafter, the Lenders shall be under no further obligation to make any
Advance hereunder to such Designated Subsidiary.
SECTION 9.09. Confidentiality. Each of the Lenders and the Agent
hereby agrees that it will use reasonable efforts (e.g., procedures
substantially comparable to those applied by such Lender or the Agent in
respect of non-public information as to the business of such Lender or the
Agent) to keep confidential any financial reports and other information
from time to time supplied to it by the Company hereunder to the extent
that such information is not and does not become publicly available and
which the Company indicates at the time is to be treated confidentially,
provided, however, that nothing herein shall affect the disclosure of any
such information (i) by the Agent to any Lender, (ii) to the extent
required by law (including statute, rule, regulation or judicial process),
(iii) to counsel for any Lender or the Agent or to their respective
independent public accountants, (iv) to bank examiners and auditors and
appropriate government examining authorities, (v) to the Agent or any other
Lender, (vi) in connection with any litigation to which any Lender or the
Agent is a party, (vii) to actual or prospective assignees and participants
as contemplated by Section 9.07(f) or (viii) to any Affiliate of the Agent
or any Lender or to such Affiliate's officers, directors, employees, agents
and advisors, provided that, prior to any such disclosure, such Affiliate
or such Affiliate's officers, directors, employees, agents or advisors, as
the case may be, shall agree to preserve the confidentiality of any
confidential information relating to the Company received by it; a
determination by a Lender or the Agent as to the application of the
circumstances described in the foregoing clauses (i)-(viii) being
conclusive if made in good faith; and each of the Lenders and the Agent
agrees that it will follow procedures which are intended to put any
transferee of such confidential information on notice that such information
is confidential.
SECTION 9.10. Mitigation of Yield Protection. Each Lender hereby
agrees that, commencing as promptly as practicable after it becomes aware
of the occurrence of any event giving rise to the operation of Section
2.10(a), 2.11 or 2.13 with respect to such Lender, such Lender will give
notice thereof through the Agent to the respective Borrower. A Borrower may
at any time, by notice through the Agent to any Lender, request that such
Lender change its Applicable Lending Office as to any Advance or Type of
Advance or that it specify a new Applicable Lending Office with respect to
its Commitment and any Advance held by it or that it rebook any such
Advance with a view to avoiding or mitigating the consequences of an
occurrence such as described in the preceding sentence, and such Lender
will use reasonable efforts to comply with such request unless, in the
opinion of such Lender, such change or specification or rebooking is
inadvisable or might have an adverse effect, economic or otherwise, upon
it, including its reputation. In addition, each Lender agrees that, except
for changes or specifications or rebookings required by law or effected
pursuant to the preceding sentence, if the result of any change or change
of specification of Applicable Lending Office or rebooking would, but for
this sentence, be to impose additional costs or requirements upon the
respective Borrower pursuant to Section 2.10(a), Section 2.11 or Section
2.13 (which would not be imposed absent such change or change of
specification or rebooking) by reason of legal or regulatory requirements
in effect at the time thereof and of which such Lender is aware at such
time, then such costs or requirements shall not be imposed upon such
Borrower but shall be borne by such Lender. All expenses incurred by any
Bank in changing an Applicable Lending Office or specifying another
Applicable Lending Office of such Lender or rebooking any Advance in
response to a request from a Borrower shall be paid by such Borrower.
Nothing in this Section 9.10 (including, without limitation, any failure by
a Lender to give any notice contemplated in the first sentence hereof)
shall limit, reduce or postpone any obligations of the respective Borrower
under Section 2.10(a), Section 2.11 or Section 2.13, including any
obligations payable in respect of any period prior to the date of any
change or specification of a new Applicable Lending Office or any rebooking
of any Advance.
SECTION 9.11. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties hereto
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 the Notes, 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 any such New York
State court or, to the extent permitted by law, in such federal court. Each
Designated Subsidiary hereby agrees that service of process in any such
action or proceeding brought in the any such New York State court or in
such federal court may be made upon CT Corporation System at its offices at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process Agent") and each
Designated Subsidiary hereby irrevocably appoints the Process Agent its
authorized agent to accept such service of process, and agrees that the
failure of the Process Agent to give any notice of any such service shall
not impair or affect the validity of such service or of any judgment
rendered in any action or proceeding based thereon. Each Borrower hereby
further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to such Borrower at its
address specified pursuant to Section 9.02. 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. Nothing in this Agreement
shall affect any right that any party may otherwise have to serve legal
process in any other manner permitted by law or to bring any action or
proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction. To the extent that each Designated Subsidiary has or
hereafter may acquire any immunity from jurisdiction of any court or from
any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) with
respect to itself or its property, each Designated Subsidiary hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or
the Notes 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.
SECTION 9.14. Substitution of Currency. If a change in any
Foreign Currency occurs pursuant to any applicable law, rule or regulation
of any governmental, monetary or multi-national authority, this Agreement
(including, without limitation, the definitions of Eurocurrency Rate and
LIBO Rate) will be amended to the extent determined by the Agent (acting
reasonably and in consultation with the Company) to be necessary to reflect
the change in currency and to put the Lenders and the Borrowers in the same
position, so far as possible, that they would have been in if no change in
such Foreign Currency had occurred.
SECTION 9.15. Final Agreement. This written agreement represents
the full and final agreement between the parties with respect to the
matters addressed herein and supercedes all prior communications, written
or oral, with respect thereto. There are no unwritten agreements between
the parties.
SECTION 9.16. Judgment. (a) If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due hereunder or
under the Notes in any currency (the "Original Currency") into another
currency (the "Other Currency"), the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Agent could purchase the Original Currency with the Other Currency at 9:00
A.M. (New York City time) on the first Business Day preceding that on which
final judgment is given.
(b) The obligation of each Borrower in respect of any sum due in
the Original Currency from it to any Lender or the Agent hereunder or under
the Revolving Credit Note or Revolving Credit Notes held by such Lender
shall, notwithstanding any judgment in any Other Currency, be discharged
only to the extent that on the Business Day following receipt by such
Lender or the Agent (as the case may be) of any sum adjudged to be so due
in such Other Currency, such Lender or the Agent (as the case may be) may
in accordance with normal banking procedures purchase Dollars with such
Other Currency; if the amount of Dollars so purchased is less than the sum
originally due to such Lender or the Agent (as the case may be) in the
Original Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent
(as the case may be) against such loss, and if the amount of Dollars so
purchased exceeds the sum originally due to any Lender or the Agent (as the
case may be) in the Original Currency, such Lender or the Agent (as the
case may be) agrees to remit to such Borrower such excess.
SECTION 9.17. Waiver of Jury Trial. Each Borrower, the Agent and
each Lender hereby irrevocably waive all right to trial by jury in any
action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the Notes or the
actions of the Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as
of the date first above written.
ALLIEDSIGNAL INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Chief Financial
Officer
CITIBANK, N.A.,
as Agent
By: /s/ Xxxxxxx X. Xxx
-------------------------------
Name: Xxxxxxx X. Xxx
Title: Attorney-in-Fact
COMMITMENT: THE LENDERS:
---------- -----------
$140,000,000 BANK OF AMERICA
NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:/s/ X.X. Xxxx
-------------------------------
Name: X.X. Xxxx
Title: Managing Director
$140,000,000 BANQUE NATIONALE DE PARIS
By:/s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
By:/s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President
$140,000,000 BARCLAYS BANK PLC
By:/s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Director
$200,000,000 CITIBANK, N.A.
By:/s/ Xxxxxxx X. Xxx
-------------------------------
Name: Xxxxxxx X. Xxx
Title: Attorney-in-Fact
$140,000,000 DEUTSCHE BANK AG
NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:/s/ Xxxx X. Xxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
By:/s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
$140,000,000 XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK
By:/s/ Xxxxxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Vice President
$900,000,000 TOTAL OF COMMITMENTS
Eurocurrency
Name of Initial Lender Domestic Lending Lending Office
------------------------------------------------------------------------------
SCHEDULE I
APPLICABLE LENDING OFFICES
Eurocurrency
Name of Initial Lender Domestic Lending Lending Office
------------------------------------------------------------------------------
BANK OF AMERICA Bank of America National Bank of America National
NATIONAL TRUST AND Trust and Savings Association Trust and Savings Association
SAVINGS ASSOCIATION 0000 Xxxxxxx Xxxxxxxxx 0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx Attn: Xxx Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
BANQUE NATIONALE DE Banque Nationale de Paris Banque Nationale de Paris
PARIS 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx Attn: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
BARCLAYS BANK PLC
CITIBANK, N.A. Citibank, N.A. Citibank, N.A.
000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxxx Attn: Xxxxxxx Xxxxxxxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
DEUTSCHE BANK AG Deutsche Bank AG Deutsche Bank AG
NEW YORK AND/OR New York Branch Cayman Islands Branch
XXXXXX XXXXXXX 00 Xxxx 00xx Xxxxxx 00 Xxxx 00xx Xxxxxx
XXXXXXXX Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx Attn: Xxxxx X. Xxxxxx
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
XXXXXX GUARANTY Xxxxxx Guaranty Trust Xxxxxx Guaranty Trust
TRUST COMPANY OF Company of New York Company of New York
NEW YORK 00 Xxxx Xxxxxx 00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
Attn: Credit Administration Attn: Credit Administration
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
SCHEDULE 3.01(b)
DISCLOSED LITIGATION
--------------------
None
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO
PAY to the order of _________________________ (the "Lender") for the
account of its Applicable Lending Office on the later of the Termination
Date (each as defined in the Credit Agreement referred to below) and the
date designated pursuant to Section 2.06 of the Credit Agreement the
aggregate principal amount of the Revolving Credit Advances made by the
Lender to the Borrower pursuant to the 364-Day Backstop Credit Agreement
dated as of October 9, 1998 among AlliedSignal Inc., the Lender and certain
other lenders parties thereto, and Citibank, N.A., as Agent for the Lender
and such other lenders (as amended or modified from time to time, the
"Credit Agreement"; the terms defined therein being used herein as therein
defined) outstanding on such date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving
Credit Advance until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both principal and interest in respect of each Revolving Credit
Advance (i) in Dollars are payable in lawful money of the United States of
America to Citibank, N.A., as Agent, at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in same day funds and (ii) in any Major Currency are payable
in such currency at the applicable Payment Office in same day funds. Each
Revolving Credit Advance owing to the Lender by the Borrower pursuant to
the Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Credit Agreement.
The Credit Agreement, among other things, (i) provides for the making of
Revolving Credit Advances by the Lender to the Borrower from time to time
in an aggregate amount not to exceed at any time outstanding the Dollar
amount first above mentioned or the Equivalent thereof in one or more Major
Currencies, the indebtedness of the Borrower resulting from each such
Revolving Credit Advance being evidenced by this Promissory Note, (ii)
contains provisions for determining the Dollar Equivalent of Revolving
Credit Advances denominated in Major Currencies and (iii) contains
provisions for acceleration of the maturity hereof upon the happening of
certain stated events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and conditions therein
specified.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver
of such rights.
This promissory note shall be governed by, and construed in
accordance with the laws of the State of New York.
[NAME OF BORROWER]
By
---------------------------
Name:
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
========================================================================================================
Date Type of Amount of Interest
Advance Advance in Rate Amount of
Relevant Currency Principal Unpaid Notation
Paid Principal Made By
or Prepaid Balance
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EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
Dated: _______________, 199_
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER], a
_________________________ corporation (the "Borrower"), HEREBY PROMISES TO
PAY to the order of _________________________ (the "Lender") for the
account of its Applicable Lending Office (as defined in the 364-Day
Backstop Credit Agreement dated as of October 9, 1998 among AlliedSignal
Inc., the Lender and certain other lenders parties thereto, and Citibank,
N.A., as Agent for the Lender and such other lenders (as amended or
modified from time to time, the "Credit Agreement"; the terms defined
therein being used herein as therein defined)), on _______________, the
principal amount of [U.S.$_______________] [for a Competitive Bid Advance
in a Foreign Currency, list currency and amount of such Advance].
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in
full, at the interest rate and payable on the interest payment date or
dates provided below:
Interest Rate: [____% per annum (calculated on the basis of a
year of _____ days for the actual number of days elapsed)].
Interest Payment Date or Dates: ______________
Both principal and interest are payable in lawful money of
___________________ to Citibank, N.A., as Agent, for the account of the
Lender at the office of _________________________, at
_________________________ in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver
of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
[NAME OF BORROWER]
By
-----------------------
Name:
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the 364-Day
Backstop Credit Agreement, dated as of October 9, 1998 (as amended or
modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto, and Citibank, N.A., as Agent for said
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02
of the Credit Agreement that the undersigned hereby requests a Revolving
Credit Borrowing under the Credit Agreement, and in that connection sets
forth below the information relating to such Revolving Credit Borrowing
(the "Proposed Revolving Credit Borrowing") as required by Section 2.02(a)
of the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing
is _______________.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurocurrency Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is [$_______________] [for a Revolving Credit Borrowing in a
Major Currency, list currency and amount of Revolving Credit
Borrowing].
[(iv) The initial Interest Period for each Eurocurrency Rate
Advance made as part of the Proposed Revolving Credit Borrowing is
_____ month[s].]
The undersigned hereby certifies that the conditions precedent to
this Revolving Credit Borrowing set forth in Section 3.03 of the Credit
Agreement have been satisfied and the applicable statements contained
therein are true on the date hereof, and will be true on the date of the
Proposed Revolving Credit Borrowing.
Very truly yours,
[NAME OF BORROWER]
By
---------------------------
Name:
Title:
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000 [Date]
Attention: Bank Loan Syndication
Ladies and Gentlemen:
The undersigned, [Name of Borrower], refers to the 364-Day
Backstop Credit Agreement, dated as of October 9, 1998 (as amended or
modified from time to time, the "Credit Agreement", the terms defined
therein being used herein as therein defined), among AlliedSignal Inc.,
certain Lenders parties thereto and Citibank, N.A., as Agent for said
Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.03
of the Credit Agreement that the undersigned hereby requests a Competitive
Bid Borrowing under the Credit Agreement, and in that connection sets forth
the terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing
__________________
(B) Aggregate Amount of Competitive Bid Borrowing
__________________
(C) [Maturity Date] [Interest Period]
__________________
(D) Interest Rate Basis
__________________
(E) Day Count Convention
__________________
(F) Interest Payment Date(s)
__________________
(G) [Currency]
__________________
(H) Borrower's Account Location
__________________
(I) ___________________
__________________
The undersigned hereby certifies that the conditions precedent to
this Competitive Bid Borrowing set forth in Section 3.04 of the Credit
Agreement have been satisfied and the applicable statements contained
therein are true on the date hereof, and will be true on the date of the
Proposed Competitive Bid Borrowing.
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section
2.03(a)(v) of the Credit Agreement.
Very truly yours,
[NAME OF BORROWER]
By
---------------------------
Name:
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Dated: _____________
Reference is made to the 364-Day Backstop Credit Agreement dated
as of October 9, 1998 (as amended or modified from time to time, the
"Credit Agreement") among AlliedSignal Inc., a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Five-Year Credit Agreement),
and Citibank, N.A., as agent (the "Agent") for the Lenders. Terms defined
in the Credit Agreement are used herein with the same meaning.
____________ (the "Assignor") and ____________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement as of
the date hereof (other than in respect of Competitive Bid Advances and
Competitive Bid Notes) equal to the percentage interest specified on
Schedule 1 hereto of all outstanding rights and obligations under the
Credit Agreement (other than in respect of Competitive Bid Advances and
Competitive Bid Notes). After giving effect to such sale and assignment,
the Assignee's Commitment and the amount of the Revolving Credit Advances
in each relevant currency owing to the Assignee will be as set forth on
Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal
and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Credit Agreement or any other instrument or document furnished pursuant
thereto or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument or
document furnished pursuant thereto; (iii) makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of any Borrower or the performance or observance by such Borrower
of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; [and (iv) attaches the
Revolving Credit Note held by the Assignor and requests that the Agent
obtain from the Borrower a new Revolving Credit Note payable to the order
of the Assignee with respect to the aggregate principal amount of the
Revolving Credit Advances assumed by such Assignee pursuant hereto,
substantially in the form of Exhibit A-1 to the Credit Agreement].
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred
to in Section 4.01(e) thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that
it is an Eligible Assignee; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with
their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches
any U.S. Internal Revenue Service forms required under Section 2.13 of the
Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance and recording by the Agent.
The effective date for this Assignment and Acceptance (the "Effective
Date") shall be the date of acceptance hereof by the Agent, unless
otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent provided in this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and (ii) the Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its
rights and be released from its obligations under the Credit Agreement,
provided, however, that the Assignor's rights under Sections 2.10, 2.13 and
9.04 of the Credit Agreement, and its obligations under Section 8.05 of the
Credit Agreement, shall survive the assignment pursuant to this Assignment
and Acceptance as to matters occurring prior to the Effective Date.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the
Credit Agreement and the Revolving Credit Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and any Revolving Credit Notes for periods prior
to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of Schedule 1 to this Assignment and Acceptance
by telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their
officers thereunto duly authorized as of the date specified thereon.
Schedule 1
to
Assignment and Acceptance
Dated: ______________
Section 1.
---------
Percentage interest assigned: _____%
Assignee's Commitment: $______
Section 2.
---------
(a) Assigned Advances
-----------------
Aggregate outstanding principal amount of Revolving Credit
Advances in Dollars assigned: $
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful money of the Republic of France assigned: Fr
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the United Kingdom of Great
Britain and Northern Ireland assigned: (pound)
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany assigned: DM
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan assigned:
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the European Economic and
Monetary Union assigned:
(b) Retained Advances
-----------------
Aggregate outstanding principal amount of Revolving Credit
Advances in Dollars retained: $
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful money of the Republic of France retained: Fr
Aggregate outstanding principal amount of Revolving
Credit Advances in lawful currency of the United Kingdom of
Great Britain and Northern Ireland retained: (pound)
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the Federal Republic of
Germany retained: DM
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of Japan retained:
Aggregate outstanding principal amount of Revolving Credit
Advances in lawful currency of the European Economic and
Monetary Union retained:
Effective Date(1): _______________
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: _______________
Domestic Lending Office:
[Address]
Eurocurrency Lending Office:
[Address]
Consented to this __________ day
of _______________
[NAME OF BORROWER]
By
Name:
Title:
---------------------
1 This date should be no earlier than five Business Days after
the delivery of this Assignment and Acceptance to the Agent.
EXHIBIT D - FORM OF ASSUMPTION AGREEMENT
Dated:________
AlliedSignal Inc.
X.X. Xxx 00x0X
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Treasurer
Citibank, N.A.,
as Agent
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
Attention: Bank Loan Syndication
Ladies and Gentlemen:
Reference is made to the 364-Day Backstop Credit Agreement dated
as of October 9, 1998 among AlliedSignal Inc. (the "Company"), the Lenders
parties thereto, and Citibank, N.A. as Agent (the "Credit Agreement"; terms
defined therein being used herein as therein defined), for such Lenders.
The undersigned ("Assuming Lender") proposes to become an
Assuming Lender pursuant to Section 2.16 of the Credit Agreement and, in
that connection, hereby agrees that it shall become a Lender for purposes
of the Credit Agreement on [applicable Extension Date], assuming on such
date the Commitment (without giving effect to assignments thereof which
have not yet become effective and without regard to any Competitive Bid
Commitment Reduction) as in effect on [applicable Extension Date] of [name
of applicable Non-Consenting Lender] (the "Assignor") in the amount of
$____________ and the Advances (without giving effect to assignments
thereof which have not yet become effective) owing to the Assignor on
[applicable Extension Date] in the amount of [indicate amounts and
currencies of various assigned Advances].
The Assignor (i) represents and warrants that as of the date
hereof its Commitment (without giving effect to assignments thereof which
have not yet become effective and without regard to any Competitive Bid
Commitment Reduction) is $______ and the outstanding principal amount of
Advances owing to it (without giving effect to assignments thereof which
have not yet become effective) (A) in Dollars is $______, (B) in lawful
currency of Japan is ____, (C) in lawful currency of the Federal Republic
of Germany is DM____, (D) in lawful currency of the Republic of France is
Fr_____, (E) in lawful currency of the United Kingdom of Great Britain and
Northern Ireland is (pound)____[, and (F) indicate amounts of Advances in
other Foreign Currencies, if any]; (ii) represents and warrants that it is
the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse claim;
(iii) makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with the Credit Agreement or any other instrument or document
furnished pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement
or any other instrument or document furnished pursuant thereto; and (iv)
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Company or any other Borrower or
the performance or observance by the Company or any other Borrower of any
of its obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
The Assuming Lender (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01(e) thereof, the most recent financial
statements referred to in Section 5.01(h) thereof and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assumption Agreement; (ii) agrees
that it will, independently and without reliance upon the Agent, the
Assignor or any other Lender and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (iii)
appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender; (v)
specifies as its Lending Office (and address for notices) the offices set
forth beneath its name on the signature pages hereof; and (vi) attaches the
forms prescribed by the Internal Revenue Service of the United States
required under Section 2.13 of Credit Agreement.
The Assuming Lender requests that the Company deliver to the
Agent (to be promptly delivered to the Assuming Lender) Revolving Credit
Notes payable to the order of the Assuming Lender, dated as of the
Extension Date and substantially in the form of Exhibit A-1 to the Credit
Agreement.
The effective date for this Assumption Agreement shall be
[applicable Extension Date]. Upon delivery of this Assumption Agreement to
the Company and the Agent, and satisfaction of all conditions imposed under
Section 2.16 as of [date specified above], the undersigned shall be a party
to the Credit Agreement and have the rights and obligations of a Lender
thereunder and the Assignor shall relinquish its rights and be released
from its obligations under the Credit Agreement. As of [date specified
above], the Agent shall make all payments under the Credit Agreement in
respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees) to the Assuming
Lender.
This Assumption Agreement may be executed in counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement. Delivery of an executed
counterpart by telecopier shall be effective as delivery of a manually
executed counterpart of this Assumption Agreement.
This Assumption Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
[NAME OF ASSUMING LENDER]
By________________________
Name:
Title:
Domestic Lending Office
(and address for notices):
[Address]
Eurodollar Lending Office
[NAME OF ASSIGNOR]2
By________________________
Name:
Title:
[Address]
Above Acknowledged and Agreed to:
ALLIEDSIGNAL INC.
By______________________
Name:
Title:
----------------------
2 Use only in connection with Section 2.16.
EXHIBIT E - FORM OF DESIGNATION LETTER
[DATE]
To each of the Lenders
parties to the
Credit Agreement (as defined
below) and to Citibank, N.A.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the 364-Day Backstop Credit Agreement dated
as of October 9, 1998 among AlliedSignal Inc. (the "Company"), the Lenders
named therein, and Citibank, N.A., as Agent for said Lenders (the "Credit
Agreement"). For convenience of reference, terms used herein and defined in
the Credit Agreement shall have the respective meanings ascribed to such
terms in the Credit Agreement.
Please be advised that the Company hereby designates its
undersigned Subsidiary, ____________ ("Designated Subsidiary"), as a
"Designated Subsidiary" under and for all purposes of the Credit Agreement.
The Designated Subsidiary, in consideration of each Lender's
agreement to extend credit to it under and on the terms and conditions set
forth in the Credit Agreement, does hereby assume each of the obligations
imposed upon a "Designated Subsidiary" and a "Borrower" under the Credit
Agreement and agrees to be bound by the terms and conditions of the Credit
Agreement. In furtherance of the foregoing, the Designated Subsidiary
hereby represents and warrants to each Lenders as follows:
1. The Designated Subsidiary is a corporation duly incorporated,
validly existing and in good standing under the laws of
__________________ and is duly qualified to transact business in all
jurisdictions in which such qualification is required.
2. The execution, delivery and performance by the Designated
Subsidiary of this Designation Letter, the Credit Agreement, its Notes
and the consummation of the transactions contemplated thereby, are
within the Designated Subsidiary's corporate powers, have been duly
authorized by all necessary corporate action, and do not and will not
cause or constitute a violation of any provision of law or regulation
or any provision of the charter or by-laws of the Designated
Subsidiary or result in the breach of, or constitute a default or
require any consent under, or result in the creation of any lien,
charge or encumbrance upon any of the properties, revenues, or assets
of the Designated Subsidiary pursuant to, any indenture or other
agreement or instrument to which the Designated Subsidiary is a party
or by which the Designated Subsidiary or its property may be bound or
affected.
3. This Designation Agreement and each of the Notes of the
Designated Subsidiary, when delivered, will have been duly executed
and delivered, and this Designation Letter, the Credit Agreement and
each of the Notes of the Designated Subsidiary, when delivered, will
constitute a legal, valid and binding obligation of the Designated
Subsidiary enforceable against the Designated Subsidiary in accordance
with their respective terms except to the extent that such enforcement
may be limited by applicable bankruptcy, insolvency and other similar
laws affecting creditors' rights generally.
4. There is no action, suit, investigation, litigation or
proceeding including, without limitation, any Environmental Action,
pending or to the knowledge of the Designated Subsidiary Threatened
affecting the Designated Subsidiary before any court, governmental
agency or arbitration that (i) is reasonably likely to have a Material
Adverse Effect, or (ii) purports to effect the legality, validity or
enforceability of this Designation Letter, the Credit Agreement, any
Note of the Designated Subsidiary or the consummation of the
transactions contemplated thereby.
5. No authorizations, consents, approvals, licenses, filings or
registrations by or with any governmental authority or administrative
body are required in connection with the execution, delivery or
performance by the Designated Subsidiary of this Designation Letter,
the Credit Agreement or the Notes of the Designated Subsidiary except
for such authorizations, consents, approvals, licenses, filings or
registrations as have heretofore been made, obtained or effected and
are in full force and effect.
6. The Designated Subsidiary is not, and immediately after the
application by the Designated Subsidiary of the proceeds of each
Advance will not be, (a) an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, or (b) a "holding
company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended.
Very truly yours,
ALLIEDSIGNAL INC.
By _________________________
Name:
Title:
[THE DESIGNATED SUBSIDIARY]
By__________________________
Name:
Title:
EXHIBIT F - FORM OF ACCEPTANCE BY PROCESS AGENT
[Letterhead of Process Agent]
[Date]
To each of the Lenders parties
to the Credit
Agreement (as defined
below) and to Citibank, N.A.,
as Agent for said Lenders
[Name of Designated Subsidiary]
-------------------------------
Ladies and Gentlemen:
Reference is made to (i) that certain 364-Day Backstop Credit
Agreement dated as of October 9, 1998 among AlliedSignal Inc., the Lenders
named therein, and Citibank, N.A., as Agent (such Credit Agreement as it
may hereafter be amended, supplemented or otherwise modified from time to
time, being the "Credit Agreement"; the terms defined therein being used
herein as therein defined), and (ii) to the Designation Letter, dated
_________, pursuant to which __________ has become a Borrower.
Pursuant to Section 9.13 of the Credit Agreement to which
__________ has become subject pursuant to its Designation Letter,
__________ has appointed the undersigned (with an office on the date hereof
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx) as Process Agent
to receive on behalf of ______________ and its property service of copies
of the summons and complaint and any other process which may be served in
any action or proceeding in any New York State or Federal court sitting in
New York City arising out of or relating to the Credit Agreement.
The undersigned hereby accepts such appointment as Process Agent
and agrees with each of you that (i) the undersigned will not terminate or
abandon the undersigned agency as such Process Agent without at least six
months prior notice to the Agent (and hereby acknowledges that the
undersigned has been retained for its services as Process Agent through
October 9, 1999), (ii) the undersigned will maintain an office in New York
City through such date and will give the Agent prompt notice of any change
of address of the undersigned, (iii) the undersigned will perform its
duties as Process Agent to receive on behalf of ______________ and its
property service of copies of the summons and complaint and any other
process which may be served in any action or proceeding in any New York
State or Federal court sitting in New York City arising out of or relating
to the Credit Agreement and (iv) the undersigned will forward forthwith to
______________ at its address at ________________ or, if different, its
then current address, copies of any summons, complaint and other process
which the undersigned receives in connection with its appointment as
Process Agent.
This acceptance and agreement shall be binding upon the
undersigned and all successors of the undersigned.
Very truly yours,
[PROCESS AGENT]
By_______________________
EXHIBIT G - FORM OF OPINION
OF J. XXXXXX XXXXX,
SENIOR COUNSEL FOR THE COMPANY
October 9, 1998
To each of the Lenders parties
to the Credit Agreement
(as defined below),
and to Citibank, N.A.,
as Agent for said Lenders
AlliedSignal Inc.
-----------------
Ladies and Gentlemen:
This opinion is furnished to you pursuant to Section 3.01(e)(vi)
of the 364-Day Backstop Credit Agreement dated as of October 9, 1998 among
AlliedSignal Inc. (the "Company"), the Lenders parties thereto, and
Citibank, N.A., as Agent for said Lenders (the "Credit Agreement"). Terms
defined in the Credit Agreement are, unless otherwise defined herein, used
herein as therein defined.
I have acted as counsel for the Company in connection with the
preparation, execution and delivery of the Credit Agreement.
In that connection I have examined:
(1) The Credit Agreement.
(2) The documents furnished by the Company pursuant to Article
III of the Credit Agreement, including the Certificate of
Incorporation of the Company and all amendments thereto (the
"Charter") and the By-laws of the Company and all amendments thereto
(the "By-laws").
(3) A certificate of the Secretary of State of the State of
Delaware, dated ____________, 1998, attesting to the continued
corporate existence and good standing of the Company in that State.
I have also examined the originals, or copies certified to my satisfaction,
of such corporate records of the Company (including resolutions adopted by
the Board of Directors of the Company), certificates of public officials
and of officers of the Company, and agreements, instruments and documents,
as I have deemed necessary as a basis for the opinions hereinafter
expressed. As to questions of fact material to such opinions, I have, when
relevant facts were not independently established by me, relied upon
certificates of the Company or its officers or of public officials. I have
assumed the due execution and delivery, pursuant to due authorization, of
the Credit Agreement by the Initial Lenders and the Agent.
I am qualified to practice law in the State of New York, and I do
not purport to be expert in, or to express any opinion herein concerning,
any laws other than the laws of the State of New York, the General
Corporation Law of the State of Delaware and the Federal laws of the United
States.
Based upon the foregoing and upon such investigation as I have
deemed necessary, I am of the following opinion:
1. The Company (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
(b) is duly qualified as a foreign corporation in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed and
(c) has all requisite corporate power and authority to own or lease
and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
2. The execution, delivery and performance by the Company of the
Credit Agreement and the Notes of the Company, and the consummation of
the transactions contemplated thereby, are within the Company's
corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene the Charter or the By-laws or (ii)
violate any law (including, without limitation, the Securities
Exchange Act of 1934 and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970),
rule, regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System) or any material
order, writ, judgment, decree, determination or award or (iii)
conflict with or result in the breach of, or constitute a default
under, any material indenture, loan or credit agreement, lease,
mortgage, security agreement, bond, note or any similar document. The
Credit Agreement and the Notes of the Company have been duly executed
and delivered on behalf of the Company.
3. No authorization, approval, or other action by, and no notice
to or filing with, any governmental authority, administrative agency
or regulatory body, or any third party is required for the due
execution, delivery and performance by the Company of the Credit
Agreement or the Notes of the Company, or for the consummation of the
transactions contemplated thereby.
4. The Credit Agreement is, and each Note of the Company when
delivered under the Credit Agreement will be, the legal, valid and
binding obligation of the Company enforceable against the Company in
accordance with their respective terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
moratorium or other similar laws relating to the enforcement of
creditors' rights generally or by the application of general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except that I
express no opinion as to (i) the subject matter jurisdiction of the
District Courts of the United States of America to adjudicate any
controversy relating to the Credit Agreement or the Notes of the
Company or (ii) the effect of the law of any jurisdiction (other than
the State of New York) wherein any Lender or Applicable Lending Office
may be located or wherein enforcement of the Credit Agreement or the
Notes of the Company may be sought which limits rates of interest
which may be charged or collected by such Lender.
5. There is no action, suit, investigation, litigation or
proceeding against the Company or any of its Subsidiaries before any
court, governmental agency or arbitrator now pending or, to the best
of my knowledge, Threatened that is reasonably likely to have a
Material Adverse Effect (other than the Disclosed Litigation) or that
purports to affect the legality, validity or enforceability of the
Credit Agreement or any Note of the Company or the consummation of the
transactions contemplated thereby, and there has been no adverse
change in the status, or financial effect on the Company or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule 3.01(b) of the Credit Agreement.
6. The Company is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
7. The Company is not a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
In connection with the opinions expressed by me above in
paragraph 4, I wish to point out that (i) provisions of the Credit
Agreement that permit the Agent or any Lender to take action or make
determinations may be subject to a requirement that such action be taken or
such determinations be made on a reasonable basis and in good faith, (ii)
that a party to whom an advance is owed may, under certain circumstances,
be called upon to prove the outstanding amount of the Advances evidenced
thereby and (iii) the rights of the Agent and the Lenders provided for in
Section 9.04(b) of the Credit Agreement may be limited in certain
circumstances.
Very truly yours,
EXHIBIT H - FORM OF OPINION OF COUNSEL
TO A DESIGNATED SUBSIDIARY
____________, 19__
To each of the Lenders parties
to the Credit Agreement
(as defined below),
and to Citibank, N.A., as Agent
for said Lenders
Ladies and Gentlemen:
In my capacity as counsel to _____________________ ("Designated
Subsidiary"), I have reviewed that certain 364-Day Backstop Credit
Agreement dated as of October 9, 1998 among AlliedSignal Inc., the Lenders
named therein, and Citibank, N.A., as Agent for such Lenders (the "Credit
Agreement"). In connection therewith, I have also examined the following
documents:
(i) The Designation Letter (as defined in the Credit Agreement)
executed by the Designated Subsidiary.
[such other documents as counsel may wish to refer to]
I have also reviewed such matters of law and examined the
original, certified, conformed or photographic copies of such other
documents, records, agreements and certificates as I have considered
relevant hereto.
Except as expressly specified herein all terms used herein and
defined in the Credit Agreement shall have the respective meanings ascribed
to them in the Credit Agreement.
Based upon the foregoing, I am of the opinion that:
1. The Designated Subsidiary (a) is a corporation duly
incorporated, validly existing and in good standing under the laws of
_________________________, (b) is duly qualified in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed and
(c) has all requisite corporate power and authority to own or lease
and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
2. The execution, delivery and performance by the Designated
Subsidiary of its Designation Letter, the Credit Agreement and its
Notes, and the consummation of the transactions contemplated thereby,
are within the Designated Subsidiary's corporate powers, have been
duly authorized by all necessary corporate action, and do not and will
not cause or constitute a violation of any provision of law or
regulation or any material order, writ, judgment, decree,
determination or award or any provision of the charter or by-laws or
other constituent documents of the Designated Subsidiary or result in
the breach of, or constitute a default or require any consent under,
or result in the creation of any lien, charge or encumbrance upon any
of the properties, revenues, or assets of the Designated Subsidiary
pursuant to, any material indenture or other agreement or instrument
to which the Designated Subsidiary is a party or by which the
Designated Subsidiary or its property may be bound or affected. The
Designation Letter and each Note of the Designated Subsidiary has been
duly executed and delivered on behalf of the Designated Subsidiary.
3. The Credit Agreement and the Designation Letter of the
Designated Subsidiary are, and each Note of the Designated Subsidiary
when delivered under the Credit Agreement will be, the legal, valid
and binding obligation of the Designated Subsidiary enforceable in
accordance with their respective terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or
moratorium or other similar laws relating to the enforcement of
creditors' rights generally or by the application of general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), and except that I
express no opinion as to (i) the subject matter jurisdiction of the
District Courts of the United States of America to adjudicate any
controversy relating to the Credit Agreement, the Designation Letter
of the Designated Subsidiary or the Notes of the Designated Subsidiary
or (ii) the effect of the law of any jurisdiction (other than the
State of New York) wherein any Lender or Applicable Lending Office may
be located or wherein enforcement of the Credit Agreement, the
Designation Letter of the Designated Subsidiary or the Notes of the
Designated Subsidiary may be sought which limits rates of interest
which may be charged or collected by such Lender.
4. There is no action, suit, investigation, litigation or
proceeding at law or in equity before any court, governmental agency
or arbitration now pending or, to the best of my knowledge and belief,
Threatened against the Designated Subsidiary that is reasonably likely
to have a Material Adverse Effect or that purports to affect the
legality, validity or enforceability of the Designation Letter of the
Designated Subsidiary, the Credit Agreement or any Note of the
Designated Subsidiary or the consummation of the transactions
contemplated thereby.
5. No authorizations, consents, approvals, licenses, filings or
registrations by or with any governmental authority or administrative
body are required for the due execution, delivery and performance by
the Designated Subsidiary of its Designation Letter, the Credit
Agreement or the Notes of the Designated Subsidiary except for such
authorizations, consents, approvals, licenses, filings or
registrations as have heretofore been made, obtained or affected and
are in full force and effect.
6. The Designated Subsidiary is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
7. The Designated Subsidiary is not a "holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
In connection with the opinions expressed by me above in
paragraph 3, I wish to point out that (i) provisions of the Credit
Agreement which permit the Agent or any Lender to take action or make
determinations may be subject to a requirement that such action be taken or
such determinations be made on a reasonable basis and in good faith, (ii) a
party to whom an advance is owed may, under certain circumstances, be
called upon to prove the outstanding amount of the Advances evidenced
thereby and (iii) the rights of the Agent and the Lenders provided for in
Section 9.04(b) of the Credit Agreement may be limited in certain
circumstances.
Very truly yours,
EXHIBIT I - FORM OF OPINION
OF SHEARMAN & STERLING,
COUNSEL TO THE AGENT
[S&S LETTERHEAD]
October 9, 1998
To the Initial Lenders party to the
Credit Agreement referred
to below and to Citibank, N.A.,
as Agent
Ladies and Gentlemen:
We have acted as special New York counsel to Citibank, N.A., as
Agent, in connection with the preparation, execution and delivery of the
364-Day Backstop Credit Agreement dated as of October 9, 1998 (the "Credit
Agreement"), among AlliedSignal Inc., a Delaware corporation (the
"Company"), and each of you (each a "Lender"). Unless otherwise defined
herein, terms defined in the Credit Agreement are used herein as therein
defined.
In that connection, we have examined a counterpart of the Credit
Agreement executed by the Company, the Revolving Credit Notes executed by
the Company and delivered on the date hereof (for purposes of this opinion
letter, the "Notes") and, to the extent relevant to our opinion expressed
below, the other documents delivered by the Company pursuant to Section
3.01 of the Credit Agreement.
In our examination of the Credit Agreement, the Notes and such
other documents, we have assumed, without independent investigation (a) the
due execution and delivery of the Credit Agreement by all parties thereto
and of the Notes by the Company, (b) the genuineness of all signatures, (c)
the authenticity of the originals of the documents submitted to us and (d)
the conformity to originals of any documents submitted to us as copies.
In addition, we have assumed, without independent investigation,
that (i) the Company is duly organized and validly existing under the laws
of the jurisdiction of its organization and has full power and authority
(corporate and otherwise) to execute, deliver and perform the Credit
Agreement and the Notes and (ii) the execution, delivery and performance by
the Company of the Credit Agreement and the Notes have been duly authorized
by all necessary action (corporate or otherwise) and do not (A) contravene
the certificate of incorporation, bylaws or other constituent documents of
the Company, (B) conflict with or result in the breach of any document or
instrument binding on the Company or (C) violate or require any
governmental or regulatory authorization or other action under any law,
rule or regulation applicable to the Company other than New York law or
United States federal law applicable to borrowers generally or, assuming
the correctness of the Company's statements made as representations and
warranties in Section 4.01(c) of the Credit Agreement, applicable to the
Company. We have also assumed that the Credit Agreement is the legal, valid
and binding obligation of each Lender, enforceable against such Lender in
accordance with its terms.
Based upon the foregoing examination and assumptions and upon
such other investigation as we have deemed necessary and subject to the
qualifications set forth below, we are of the opinion that the Credit
Agreement and each of the Notes are the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their respective terms.
Our opinion above is subject to the following qualifications:
(i) Our opinion above is subject to the effect of any applicable
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar law affecting creditors' rights generally.
(ii) Our opinion above is also subject to the effect of general
principles of equity, including (without limitation) concepts of
materiality, reasonableness, good faith and fair dealing (regardless
of whether considered in a proceeding in equity or at law).
(iii) We express no opinion as to the enforceability of the
indemnification provisions set forth in Section 9.04 of the Credit
Agreement to the extent enforcement thereof is contrary to public
policy regarding the exculpation of criminal violations, intentional
harm and acts of gross negligence or recklessness.
(iv) Our opinion above is limited to the law of the State of New
York and the federal law of the United States of America and we do not
express any opinion herein concerning any other law. Without limiting
the generality of the foregoing, we express no opinion as to the
effect of the law of a jurisdiction other than the State of New York
wherein any Lender may be located or wherein enforcement of the Credit
Agreement or any of the Notes may be sought that limits the rates of
interest legally chargeable or collectible.
A copy of this opinion letter may be delivered by any of you to
any Person that becomes a Lender in accordance with the provisions of the
Credit Agreement. Any such Lender may rely on the opinion expressed above
as if this opinion letter were addressed and delivered to such Lender on
the date hereof.
This opinion letter speaks only as of the date hereof. We
expressly disclaim any responsibility to advise you or any other Lender who
is permitted to rely on the opinion expressed herein as specified in the
next preceding paragraph of any development or circumstance of any kind
including any change of law or fact that may occur after the date of this
opinion letter even though such development, circumstance or change may
affect the legal analysis, a legal conclusion or any other matter set forth
in or relating to this opinion letter. Accordingly, any Lender relying on
this opinion letter at any time should seek advice of its counsel as to the
proper application of this opinion letter at such time.
Very truly yours,
