CONFORMED COPY
EXHIBIT 10.47
$300,000,000
CREDIT AGREEMENT
dated as of
October 11, 2002
among
Allergan, Inc.,
as Borrower and Guarantor
The Eligible Subsidiaries
Referred to Herein,
as Borrowers
The Banks Party Hereto
JPMorgan Chase Bank,
as Administrative Agent
Citicorp USA Inc.,
Syndication Agent
and
Bank of America, N.A.,
as Documentation Agent
----------------------------
X.X. Xxxxxx Securities Inc. and
Xxxxxxx Xxxxx Barney Inc.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions ................................................. 1
SECTION 1.02. Accounting Terms and Determinations ......................... 17
SECTION 1.03. Types of Borrowings ......................................... 17
ARTICLE 2
THE CREDITS
SECTION 2.01. Commitments to Lend ......................................... 17
SECTION 2.02. Notice of Committed Borrowings .............................. 18
SECTION 2.03. Competitive Bid Borrowings .................................. 18
SECTION 2.04. Notice to Banks; Funding of Loans ........................... 23
SECTION 2.05. Notes ....................................................... 24
SECTION 2.06. Maturity of Loans ........................................... 24
SECTION 2.07. Interest Rates .............................................. 25
SECTION 2.08. Fees ........................................................ 26
SECTION 2.09. Method of Electing Types of Interest Rates and Interest
Periods for Dollar-Denominated Loans ........................ 27
SECTION 2.10. Method of Electing Interest Periods for Alternative Currency
Loans; Required Prepayments ................................. 28
SECTION 2.11. Termination or Reduction of Commitments...................... 29
SECTION 2.12. Optional Prepayments ........................................ 20
SECTION 2.13. General Provisions as to Payments ........................... 30
SECTION 2.14. Funding Losses .............................................. 32
SECTION 2.15. Computation of Interest and Fees ............................ 32
SECTION 2.16. Judgment Currency ........................................... 32
SECTION 2.17. Reserve Costs ............................................... 33
SECTION 2.18. Letters of Credit ........................................... 34
ARTICLE 3
CONDITIONS
SECTION 3.01. Effectiveness ............................................... 40
SECTION 3.02. Borrowings and Issuance of Letters of Credit ................ 41
SECTION 3.03. First Borrowing by Each Eligible Subsidiary ................. 42
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power ............................... 42
SECTION 4.02. Corporate and Governmental Authorization; No Contravention .. 42
SECTION 4.03. Binding Effect .............................................. 42
SECTION 4.04. Financial Information ....................................... 43
SECTION 4.05. Litigation .................................................. 43
SECTION 4.06. Compliance with Erisa ....................................... 43
SECTION 4.07. Environmental Matters ....................................... 43
SECTION 4.08. Taxes ....................................................... 43
SECTION 4.09. Not an Investment Company ................................... 44
SECTION 4.10. Full Disclosure ............................................. 44
SECTION 4.11. Subsidiaries ................................................ 45
SECTION 4.12. Good Title to Properties .................................... 45
SECTION 4.13. Trademarks, Patents, Etc. ................................... 45
ARTICLE 5
COVENANTS
SECTION 5.01. Information ................................................. 45
SECTION 5.02. Payment of Obligations ...................................... 48
SECTION 5.03. Maintenance of Property; Insurance .......................... 48
SECTION 5.04. Conduct of Business and Maintenance of Existence ............ 48
SECTION 5.05. Compliance with Laws ........................................ 49
SECTION 5.06. Inspection of Property, Books and Records ................... 49
SECTION 5.07. Subsidiary Debt ............................................. 49
SECTION 5.08. Debt to Capitalization ...................................... 49
SECTION 5.09. Minimum Consolidated Net Worth .............................. 49
SECTION 5.10. Negative Pledge ............................................. 49
SECTION 5.11. Consolidations, Mergers and Sales of Assets ................. 51
SECTION 5.12. Use of Proceeds ............................................. 51
SECTION 5.13. Transactions with Affiliates ................................ 51
ARTICLE 6
DEFAULTS
SECTION 6.01. Events of Default............................................ 51
SECTION 6.02. Notice of Default............................................ 54
SECTION 6.03. Cash Collateral.............................................. 54
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ARTICLE 7
THE AGENTS
SECTION 7.01. Appointment and Authorization ............................... 54
SECTION 7.02. Administrative Agent and Affiliates ......................... 54
SECTION 7.03. Action by the Administrative Agent .......................... 55
SECTION 7.04. Consultation with Experts ................................... 55
SECTION 7.05. Liability of the Administrative Agent ....................... 55
SECTION 7.06. Indemnification ............................................. 55
SECTION 7.07. Credit Decision ............................................. 56
SECTION 7.08. Successor Administrative Agent .............................. 56
SECTION 7.09. Administrative Agent's Fee .................................. 56
SECTION 7.10. Other Agents ................................................ 56
ARTICLE 8
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or Unfair .... 57
SECTION 8.02. Illegality .................................................. 57
SECTION 8.03. Increased Cost and Reduced Return ........................... 58
SECTION 8.04. Taxes ....................................................... 60
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate Loans ... 63
SECTION 8.06. Substitution of Bank ........................................ 64
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF ELIGIBLE SUBSIDIARIES
SECTION 9.01. Corporate Existence and Power ............................... 64
SECTION 9.02. Corporate and Governmental Authorization; No Contravention .. 64
SECTION 9.03. Binding Effect .............................................. 64
SECTION 9.04. Taxes ....................................................... 65
ARTICLE 10
GUARANTY
SECTION 10.01. The Guaranty ............................................... 65
SECTION 10.02. Guaranty Unconditional ..................................... 65
SECTION 10.03. Discharge Only upon Payment in Full; Reinstatement in
Certain Circumstances ...................................... 66
SECTION 10.04. Waiver by the Company ...................................... 67
SECTION 10.05. Subrogation ................................................ 67
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SECTION 10.06. Stay of Acceleration ....................................... 67
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Notices .................................................... 67
SECTION 11.02. No Waivers ................................................. 69
SECTION 11.03. Expenses; Indemnification .................................. 69
SECTION 11.04. Sharing of Set-offs ........................................ 69
SECTION 11.05. Amendments and Waivers ..................................... 70
SECTION 11.06. Successors and Assigns ..................................... 71
SECTION 11.07. Collateral ................................................. 73
SECTION 11.08. Governing Law; Submission to Jurisdiction .................. 73
SECTION 11.09. Counterparts; Integration .................................. 73
SECTION 11.10. Waiver of Jury Trial ....................................... 73
Commitment Schedule
Pricing Schedule
Exhibit A-Form of Note
Exhibit B-Form of Competitive Bid Quote Request
Exhibit C-Form of Invitation for Competitive Bid Quotes
Exhibit D-Form of Competitive Bid Quote
Exhibit E-Form of Opinion of General Counsel for the Company
Exhibit F-Form of Opinion of Xxxxx Xxxx & Xxxxxxxx, Special
Counsel to the Agent
Exhibit G-Form of Election to Participate
Exhibit H-Form of Election to Terminate
Exhibit I-Form of Assignment and Assumption Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of October 11, 2002 among ALLERGAN, INC., the
ELIGIBLE SUBSIDIARIES referred to herein, the BANKS party hereto, JPMorgan Chase
Bank, as Administrative Agent, Citicorp USA Inc., as Syndication Agent and Bank
of America, N.A., as Documentation Agent.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.01. Definitions. The following terms, as used herein,
have the following meanings:
"Absolute Rate Auction" means a solicitation of Competitive Bid
Quotes setting forth Competitive Bid Absolute Rates pursuant to Section 2.03.
"Adjusted Cash" means an amount equal to 70% of the cash and cash
equivalents denominated in Dollars or in any currency which is readily
exchangeable into Dollars and which is not, at such time, subject to any form of
exchange control regulation and which is not held in escrow as contemplated by
clause (ii) of the definition of Consolidated Debt, and which are payable by
either their terms at an address within the United States and by a United States
resident or other person having an address within the United States, owned by
Allergan Pharmaceuticals Holdings (Ireland) Limited ("APHIL"), a subsidiary of
Allergan Holdings, Inc., a Delaware corporation, or by the Company, such amount
not to exceed $150,000,000 in respect of cash and cash equivalents owned by
APHIL and $150,000,000 in respect of cash and cash equivalents owned by the
Company.
"Adjusted Consolidated Net Worth" means at any date Consolidated
Net Worth less (to the extent reflected in the determination thereof) all
investments in unconsolidated Subsidiaries and all equity investments in Persons
which are not Subsidiaries.
"Administrative Questionnaire" means, with respect to each Bank,
an administrative questionnaire in the form prepared by the Administrative
Agent, duly completed by such Bank and submitted to the Administrative Agent
(with a copy to the Company).
"Affiliate" means (i) any Person (other than the Company and its
Subsidiaries) directly or indirectly controlling, controlled by, or under common
control with the Company or (ii) any Person (other than the Company and its
Subsidiaries) that owns or controls 20% or more of any class of equity
securities of the Company or any of its Subsidiaries or Affiliates. For the
purposes of this definition, "control" (including with correlative meanings, the
terms "controlling", "controlled by," and "under common control with"), as
applied to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or
otherwise.
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"Administrative Agent" means JPMorgan Chase Bank, in its capacity
as administrative agent for the Banks hereunder, and its successors in such
capacity.
"Aggregate Letter of Credit Exposure" means, at any time, the
sum, without duplication, of (i) the aggregate amount that is (or may thereafter
become) available for drawing under all Letters of Credit outstanding at such
time and (ii) the aggregate unpaid amount of all Letter of Credit Reimbursement
Obligations at such time.
"Agent" means the Administrative Agent, the Documentation Agent
and the Syndication Agent.
"Alternative Currencies" means the Euro, Canadian dollars,
Japanese yen, British pounds sterling and Australian dollars, provided that any
other currency (except Dollars) shall also be an Alternative Currency if (i) the
Company requests, by notice to the Administrative Agent, that such currency be
included as an additional Alternative Currency for purposes of this Agreement,
(ii) such currency is freely transferable and freely convertible into Dollars,
(iii) deposits in such currency are customarily offered to banks in the London
Interbrain market and (iv) each Bank either (x) approves the inclusion of such
currency as an additional Alternative Currency for purposes hereof or (y) fails
to notify the Administrative Agent that it objects to such inclusion within five
Domestic Business Days after the Administrative Agent notifies it of the
Company's request for such inclusion.
"Alternative Currency-Denominated Loan" means a Loan that is made
in an Alternative Currency in accordance with the applicable Notice of
Borrowing.
"Alternative Currency Loan" means a Committed Loan that is an
Alternative Currency-Denominated Loan.
"AMO Spin-off" means the spin-off by the Company of Advanced
Medical Optics, Inc.
"Applicable Lending Office" means, with respect to any Bank, (i)
in the case of its Base Rate Loans, its Domestic Lending Office, (ii) in the
case of its Euro-Currency Loans, its Euro-Currency Lending Office and (iii) in
the case of its Competitive Bid Loans, its Competitive Bid Lending Office.
"Approved Fund" means any Fund that is administered or managed by
(i) a Bank, (ii) an affiliate of a Bank or (iii) an entity or an affiliate of an
entity that administers or manages a Bank.
"Assignee" has the meaning set forth in Section 11.06(c).
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 11.06(c), and their respective
successors, provided that for purposes of any determination made with respect to
Citicorp USA, Inc. under Section 8.01(b), 8.02 or 8.03, the term "Bank" shall be
deemed to include Citibank, N.A.
2
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
"Base Rate Loan" means (i) a Committed Loan that is outstanding
as a Base Rate Loan in accordance with the applicable Notice of Committed
Borrowing or an applicable Notice of Interest Rate Election or pursuant to
Article 8 or the last sentence of Section 2.09(a) or (ii) an overdue amount
which was a Base Rate Loan immediately before it became overdue.
"Borrower" means the Company or any Eligible Subsidiary, as the
context may require, and their respective successors, and "Borrowers" means all
of the foregoing.
"Borrowing" has the meaning set forth in Section 1.03.
"Commitment" means (i) with respect to any Bank listed on the
Commitment Schedule attached hereto, the amount set forth opposite its name on
such Commitment Schedule as its Commitment or (ii) with respect to any Assignee,
the amount of the transferor Bank's Commitment assigned to such Assignee
pursuant to Section 11.06(c), in each case as such amount may be reduced from
time to time pursuant to Section 2.11 or changed as a result of an assignment
pursuant to Section 11.06(c).
"Committed Loan" means a loan made by a Bank pursuant to Section
2.01; provided that, if any such loan or loans (or portions thereof) are
combined or subdivided pursuant to a Notice of Interest Rate Election, the term
"Committed Loan" shall refer to the combined principal amount resulting from
such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.
"Company" means Allergan, Inc., a Delaware corporation, and its
successors.
"Competitive Bid Absolute Rate" has the meaning set forth in
Section 2.03(d).
"Competitive Bid Absolute Rate Loan" means a Dollar-Denominated
Loan made by a Bank pursuant to an Absolute Rate Auction.
"Competitive Bid Lending Office" means, as to each Bank, its
Domestic Lending Office, Euro-Currency Lending Office or such other office,
branch or affiliate of such Bank as it may hereafter designate as its
Competitive Bid Lending Office by notice to the Company and the Administrative
Agent; provided that any Bank may from time to time by notice to the Company and
the Administrative Agent designate separate Competitive Bid Lending Offices for
(i) its Competitive Bid LABOR Loans, (ii) its Competitive Bid Absolute Rate
Loans and (iii) its Competitive Bid Loans in different currencies, in which case
all references herein to the Competitive Bid Lending Office of such Bank shall
be deemed to refer to either or both of such offices, as the context may
require.
"Competitive Bid LIBOR Loan" means a Dollar-Denominated Loan or
an Alternative Currency-Denominated Loan made by a Bank pursuant to a LIBOR
Auction (including such a Loan bearing interest at the Base Rate pursuant to
Section 8.01(a)).
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"Competitive Bid Loan" means a Competitive Bid LIBOR Loan or a
Competitive Bid Absolute Rate Loan.
"Competitive Bid Margin" has the meaning set forth in Section
2.03(d).
"Competitive Bid Quote" means an offer by a Bank to make a
Competitive Bid Loan in accordance with Section 2.03.
"Consolidated Debt" means at any date, (i) the Debt of the
Company and its Consolidated Subsidiaries, determined on a consolidated basis as
of such date, minus (ii) until the earlier of (a) the date the XXXXX are retired
in full or (b) December 31, 2003, an amount equal to the lesser of (x) the
amount of the XXXXX that is included in the calculation under clause (i) and (y)
the amount of Refinancing Proceeds held in escrow at such date for the purpose
of refinancing the XXXXX.
"Consolidated Net Income" means consolidated net income of the
Company and its Consolidated Subsidiaries.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Company and its Consolidated Subsidiaries determined
as of such date less (to the extent reflected in determining such consolidated
stockholders' equity) all write-ups (other than write-ups resulting from foreign
currency translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business) subsequent to June
28, 2002 in the book value of any asset owned by the Company or a Consolidated
Subsidiary.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of the
Company in its consolidated financial statements if such statements were
prepared as of such date.
"Credit Exposure" means, with respect to any Bank at any time,
(i) the amount of its Commitment (whether used or unused) at such time or (ii)
if the Commitments have terminated in their entirety, the sum of (i) the
aggregate outstanding principal amount of its Loans plus (ii) its Percentage of
the Aggregate Letter of Credit Exposure at such time.
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all Debt secured
by a Lien on any asset of such Person, whether or not such Debt is otherwise an
obligation of such Person and (vi) all Debt of others Guaranteed by such Person.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
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"Documentation Agent" means Bank of America, N.A. in its capacity
as documentation agent for the Banks in connection with the credit facility
provided under this Agreement.
"Dollar Amount" means:
(i) with respect to any Dollar-Denominated Loan at any time, the
principal amount thereof then outstanding;
(ii) with respect to any Letter of Credit Liabilities denominated
in Dollars, the face amount thereof at such time;
(iii) with respect to any Alternative Currency-Denominated Loan
at any time during any Interest Period applicable thereto, the principal amount
thereof then outstanding in the relevant Alternative Currency, converted to
Dollars at the Administrative Agent's spot buying rate for Dollars against such
Alternative Currency as of approximately 11:00 A.M. (London time) three
Euro-Currency Business Days before the first day of such Interest Period; and
(iv) with respect to any Letter of Credit Liabilities denominated
in any Alternative Currency, the face amount thereof at the relevant Alternative
Currency, converted into Dollars at the Administrative Agent's spot buying rate
for Dollars against such Alternative Currency as of approximately 11:00 A.M.
(London time) on the Euro-Currency Business Day of such calculation.
If an Alternative Currency-Denominated Loan is not paid when due,
the Dollar Amount thereof shall be recalculated as contemplated by clause (iii)
above on the due date thereof and at three-month intervals thereafter until such
Loan is paid in full.
"Dollar-Denominated Loan" means a Loan that is made in Dollars in
accordance with the applicable Notice of Borrowing.
"Dollars" and the sign "$" mean lawful money of the United
States.
"Domestic Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York City are authorized by law to
close.
"Domestic Lending Office" means, as to each Bank, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Bank may hereafter designate as its Domestic
Lending Office by notice to the Company and the Administrative Agent.
"Effective Date" means the date on which the Administrative Agent
shall have received all the payments and documents specified in or pursuant to
Section 3.01.
"Election to Participate" means an Election to Participate
substantially in the form of Exhibit G hereto.
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"Election to Terminate" means an Election to Terminate
substantially in the form of Exhibit H hereto.
"Eligible Subsidiary" means any wholly owned Consolidated
Subsidiary as to which an Election to Participate shall have been delivered to
the Administrative Agent and as to which an Election to Terminate shall not have
been delivered to the Administrative Agent. Each such Election to Participate
and Election to Terminate shall be duly executed on behalf of such Subsidiary
and the Company in such number of copies as the Administrative Agent may
request. The delivery of an Election to Terminate shall not affect any
obligation of an Eligible Subsidiary theretofore incurred. The Administrative
Agent shall promptly give notice to the Banks of the receipt of any Election to
Participate or Election to Terminate.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
the environment, the effect of the environment on human health or to emissions,
discharges or releases of pollutants, contaminants, Hazardous Substances or
wastes into the environment including, without limitation, ambient air, surface
water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants, Hazardous Substances or wastes or the
clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, or any successor statute.
"ERISA Group" means the Company, any Subsidiary and all members
of a controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the Company or any
Subsidiary, are treated as a single employer under Section 414 of the Internal
Revenue Code.
"Euro" means the single currency of the Participating Member
States.
"Euro-Currency Business Day" means a Euro-Dollar Business Day,
unless such term is used in connection with an Alternative Currency-Denominated
Borrowing or Alternative Currency-Denominated Loan for which funds are to be
paid or made available in such Alternative Currency on such day, in which case
such day shall not be a Euro-Currency Business Day unless commercial banks are
open for domestic and international business (including dealings in deposits in
such Alternative Currency) in both London and the place where such funds are to
be paid or made available.
"Euro-Currency Lending Office" means, as to each Bank, its
office, branch or affiliate located at its address set forth in its
Administrative Questionnaire (or identified in its Administrative Questionnaire
as its Euro-Currency Lending Office) or such other office, branch or affiliate
of such Bank as it may hereafter designate as its Euro-Currency Lending Office
by notice to the Company and the Administrative Agent; provided that any Bank
may from time to time by notice to the Borrower and the Administrative Agent
designate separate Euro-Currency Lending Office for its Loans in different
currencies, in which case all references herein to the
6
Euro-Currency Lending Office of such Bank shall be deemed to refer to any or all
of such offices, as the context may require.
"Euro-Currency Loan" means a Euro-Dollar Loan or an Alternative
Currency Loan.
"Euro-Currency Margin" means the applicable rate per annum
determined in accordance with the Pricing Schedule.
"Euro-Currency Reference Banks" means the principal London
offices of Bank of America, N.A., Citibank, N.A., and JPMorgan Chase Bank.
"Euro-Currency Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement for a member bank of
the Federal Reserve System in New York City with deposits exceeding five billion
dollars in respect of "Eurocurrency liabilities" (or in respect of any other
category of liabilities which includes deposits by reference to which the
interest rate on Euro-Currency Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents).
"Euro-Dollar Business Day" means any Domestic Business Day on
which commercial banks are open for international business (including dealings
in Dollar deposits) in London.
"Euro-Dollar Loan" means (i) a Committed Loan that is outstanding
as a Euro-Dollar Loan in accordance with the applicable Notice of Committed
Borrowing or an applicable Notice of Interest Rate Election or (ii) an overdue
amount which was a Euro-Dollar Loan immediately before it became overdue.
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Facility" means the credit agreement dated as of
December 22, 1993 as amended and restated as of May 10, 1996, as further
amended, and amended and restated from time to time, in the original amount of
$250,000,000, among the Company, the banks parties thereto, and the agents
parties thereto.
"Facility Fee Rate" means the applicable rate per annum
determined in accordance with the Pricing Schedule.
"FAS 87" means United States Financial Accounting Standard No.
87.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if such day is not a
Domestic Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the
7
next preceding Domestic Business Day as so published on the next succeeding
Domestic Business Day, and (ii) if no such rate is so published on such next
succeeding Domestic Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to JPMorgan Chase Bank on such day on such transactions
as determined by the Administrative Agent.
"Fixed Rate Loans" means Euro-Currency Loans or Competitive Bid
Loans (excluding Competitive Bid LIBOR Loans bearing interest at the Base Rate
pursuant to Section 8.01(a)) or any combination of the foregoing.
"Fully Drawn Margin" means at any date, the Euro-Currency Margin
applicable at such date assuming Utilization to be 100%.
"Fund" means any Person (other than a natural Person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.
"Group of Loans" means at any time a group of Loans consisting of
(i) all Committed Loans to the same Borrower which are Base Rate Loans at such
time or (ii) all Euro-Currency Loans to the same Borrower which are in the same
currency and have the same Interest Period at such time; provided that, if a
Committed Loan of any particular Bank is converted to or made as a Base Rate
Loan pursuant to Section 8.02 or 8.04, such Loan shall be included in the same
Group or Groups of Loans from time to time as it would have been in if it had
not been so converted or made.
"Governmental Authority" means any federal, state, local, foreign
or other governmental or administrative body, instrumentality, department or
agency or any court, tribunal, administrative hearing body, arbitration panel,
commission or other similar dispute resolving panel or body.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the holder of such Debt of the
payment thereof or to protect such holder against loss in respect thereof (in
whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" means the Company in its capacity as guarantor of the
obligations of the Eligible Subsidiaries pursuant to the provisions of Article
10.
"Hazardous Substances" means any toxic, radioactive, caustic or
otherwise hazardous substance, including petroleum, its derivatives, by-products
and other hydrocarbons, or any substance having any constituent elements
displaying any of the foregoing characteristics.
8
"Indemnitee" has the meaning set forth in Section 11.03(b).
"Interest Period" means: (1) with respect to each Euro-Currency
Loan, a period commencing on the date of borrowing specified in the applicable
Notice of Borrowing or on the date specified in an applicable Notice of Interest
Rate Election and ending one, two, three or six months thereafter, as the
Company may elect in the applicable notice; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day which is not a
Euro-Currency Business Day for the relevant currency shall be extended to the
next succeeding Euro-Currency Business Day for such currency unless such
Euro-Currency Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Currency Business Day for
such currency;
(b) any Interest Period which begins on the last Euro-Currency
Business Day for the relevant currency in a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall, subject to clause (c) below, end on the last
Euro-Currency Business Day for the relevant currency in a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date (or, if the Termination Date
is not a Euro-Currency Business Day for the relevant currency, the next
preceding Euro-Currency Business Day for such currency).
(2) with respect to each Competitive Bid LIBOR Loan, the period
commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending a minimum of one month thereafter, as the Company may elect
in accordance with Section 2.03; provided that:
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (c) below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall, subject to clause (c) below, end on the last Euro-Dollar Business Day of
a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Competitive Bid Absolute Rate Loan, the
period commencing on the date of borrowing specified in the applicable Notice of
Borrowing and ending such number of days thereafter (but not less than 15 days)
as the Company may elect in accordance with Section 2.03; provided that:
9
(a) any Interest Period (other than an Interest Period determined
pursuant to clause (b) below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986,
as amended, or any successor statute.
"Issuing Bank" means JPMorgan Chase Bank or any other Bank
designated by the Company that may agree to issue letters of credit hereunder
pursuant to an instrument in form reasonably satisfactory to the Administrative
Agent, each in its capacity as an issuer of a Letter of Credit hereunder.
"Letter of Credit" means a letter of credit to be issued
hereunder by an Issuing Bank.
"Letter of Credit Liabilities" means, for any Bank and at any
time, such Bank's ratable participation in the sum of (x) the aggregate amount
then owing by the Borrower in respect of amounts paid by the Issuing Bank upon a
drawing under a Letter of Credit issued hereunder and (y) the aggregate amount
then available for drawing under all outstanding Letters of Credit.
"Letter of Credit Reimbursement Obligations" means, at any time,
all obligations of the Borrower to reimburse the Issuing Banks for amounts paid
by the Issuing Banks in respect of drawings under Letters of Credit, including
any portion of any such obligations to which a Bank has become subrogated
pursuant to Section 2.18(c).
"Letter of Credit Termination Date" means the fifth Domestic
Business Day prior to the Termination Date.
"LIBOR Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins based on the London Interbank Offered Rate
pursuant to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement that has the practical effect of creating a security
interest in respect of such asset. For the purposes of this Agreement, the
Company or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Currency Loan or a
Competitive Bid Loan and "Loans" means Base Rate Loans or Euro-Currency Loans or
Competitive Bid Loans or any combination of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.07(b).
10
"XXXXX" means the Liquid Yield Option(TM) Notes due 2020
(Zero-Coupon Subordinated), issued pursuant to that certain Indenture dated as
of November 1, 2000 between the Company and U.S. Bank Trust National
Association, a national banking association organized under the laws of the
United States.
"Margin Stock" has the meaning set forth in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Debt" means Debt (other than the Loans) of the Company
and/or one or more of its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount exceeding $40,000,000.
"Materially Adverse Effect" means any materially adverse change
in the business, operations, condition (financial or otherwise) or assets of the
Company and its Subsidiaries taken as a whole.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $20,000,000.
"Moody's" means Xxxxx'x Investors Services, Inc., or any
successor to such corporation's business of rating debt securities.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any
member of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"Notes" means promissory notes of a Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of such Borrower to
repay the Loans made to it, and "Note" means any one of such promissory notes
issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing or a
Notice of Competitive Bid Borrowing.
"Notice of Committed Borrowing" has the meaning set forth in
Section 2.02.
"Notice of Competitive Bid Borrowing" has the meaning set forth
in Section 2.03(f).
"Notice of Interest Rate Election" means a notice by the Company
electing a type of interest rate and/or the duration of an Interest Period as
provided in Section 2.09(a) or 2.10.
"Notice of Issuance" has the meaning set forth in Section
2.18(b)(i).
"Overnight LIBO Rate" has the meaning set forth in Section
2.07(c).
"Parent" means, with respect to any Bank, any Person controlling
such Bank.
11
"Participant" has the meaning set forth in Section 11.06(b).
"Participating Member States" means the members of the European
Union from time to time which adopt a single, shared currency.
"Payment Date" has the meaning set forth in Section 2.18(c)(i).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Percentage" means, with respect to any Bank at any time, the
percentage which the amount of its Commitment at such time represents of the
aggregate amount of all the Commitments at such time. At any time after the
Commitments shall have terminated, the term "Percentage" shall refer to a Bank's
Percentage immediately before such termination.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means the rate of interest publicly announced by
JPMorgan Chase Bank in New York City from time to time as its Prime Rate.
"Quarterly Payment Date" means each March 15, June 15, September
15 and December 15.
"Refinancing Proceeds" means the cash proceeds received by the
Company from the issuance of Debt incurred for the purpose of refinancing the
XXXXX.
"Register" has the meaning specified in Section 2.05(a).
"Reimbursement Date" has the meaning specified in Section
2.18(c)(i).
"Reimbursement Obligation" has the meaning specified in Section
2.18(c)(i).
"Required Banks" means at any time Banks having more than 50% of
the aggregate amount of the Credit Exposures.
"SEC" means the U.S. Securities and Exchange Commission.
12
"S&P" means Standard & Poor's Ratings Services, or any successor
to such corporation's business of rating debt securities.
"Stop Issuance Notice" has the meaning specified in Section
2.18(f).
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Company.
"Syndication Agent" means Citicorp USA Inc., in its capacity as
syndication agent in connection with the credit facility provided under this
Agreement.
"Termination Date" means October 11, 2007 or, if such day is not
a Euro-Currency Business Day, the next succeeding Euro-Currency Business Day.
"Total Outstanding Amount" means, at any time, the sum of (i) the
aggregate outstanding Dollar Amount of the Loans (including both Committed Loans
and Competitive Bid Loans) determined at such time after giving effect, if one
or more Loans are being made at such time, to any substantially concurrent
application of the proceeds thereof to repay one or more other Loans plus,
without duplication, (ii) the aggregate Dollar Amount of the Letter of Credit
Liabilities of all Banks at such time.
"Unfunded Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the value of all benefit liabilities
under such Plan, determined on a plan termination basis using the assumptions
prescribed by FAS 87, exceeds (ii) the fair market value of all Plan assets
allocable to such liabilities under Title IV of ERISA (excluding any accrued but
unpaid contributions), all determined as of the then most recent valuation date
for such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or any other Person under
Title IV of ERISA.
"United States" means the United States of America, including the
States thereof and the District of Columbia, but excluding its territories and
possessions.
"Utilization" has the meaning set forth in the Pricing Schedule.
"Wholly-Owned Subsidiary" means any Subsidiary all of the shares
of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Company.
Section 1.02. Accounting Terms and Determinations. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes concurred in by the
Company's independent public accountants) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks; provided that, if the Company notifies the
Administrative Agent that the Company wishes to amend any
13
covenant in Article 5 to eliminate the effect of any change in generally
accepted accounting principles on the operation of such covenant (or if the
Administrative Agent notifies the Company that the Required Banks wish to amend
Article 5 for such purpose), then the Company's compliance with such covenant
shall be determined on the basis of generally accepted accounting principles in
effect immediately before the relevant change in generally accepted accounting
principles became effective, until either such notice is withdrawn or such
covenant is amended in a manner satisfactory to the Company and the Required
Banks.
Section 1.03. Types of Borrowings. The term "Borrowing" denotes
the aggregation of Loans by one or more Banks to be made to a single Borrower
pursuant to Article 2 on a single date, all of which Loans (i) are made in the
same currency, (ii) in the case of Loans denominated in Dollars, are of the same
type (subject to Article 8) and (iii) except in the case of Base Rate Loans,
have the same Interest Period or initial Interest Period. Borrowings are
classified for purposes of this Agreement either by reference to the currency
and/or pricing of Loans comprising such Borrowing (e.g., a "Euro-Dollar
Borrowing" is a Borrowing comprised of Euro-Dollar Loans) or by reference to the
provisions of Article 2 under which participation therein is determined (i.e., a
"Committed Borrowing" is a Borrowing under Section 2.01 in which all Banks
participate in proportion to their Commitments, while a "Competitive Bid
Borrowing" is a Borrowing under Section 2.03 in which the Bank participants are
determined on the basis of their bids in accordance therewith).
ARTICLE 2
The Credits
Section 2.01. Commitments to Lend. Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Company or any Eligible Subsidiary pursuant to this Section from time to time
prior to the Termination Date; provided that, immediately after each such loan
is made: (i) the sum of the aggregate Dollar Amount of Committed Loans by such
Bank plus the Dollar Amount of its Letter of Credit Liabilities shall not exceed
the amount of its Commitment and (ii) the Total Outstanding Amount shall not
exceed the aggregate amount of the Commitments. Each Borrowing of
Dollar-Denominated Loans under this Section shall be in an aggregate principal
amount of at least $5,000,000 or any larger multiple of $1,000,000 (except that
any such Borrowing may be in the aggregate amount available in accordance with
Section 3.02(c)). Each Borrowing in an Alternative Currency shall be in an
aggregate Dollar Amount of at least $5,000,000. Each Borrowing under this
Section, in any currency, shall be made from the several Banks ratably in
proportion to their respective Commitments. Within the foregoing limits, the
Borrowers may borrow under this Section, repay, or to the extent permitted by
Section 2.12, prepay Loans and reborrow at any time prior to the Termination
Date under this Section.
Section 2.02. Notice of Committed Borrowings. The Company shall
give the Administrative Agent notice (a "Notice of Committed Borrowing") not
later than 11:00 A.M. (New York City time) on (i) the date of each Base Rate
Borrowing, (ii) the third Euro-Dollar Business Day before each Euro-Dollar
Borrowing and (iii) the fourth Euro-Currency Business Day before each
Alternative Currency Borrowing, specifying:
14
(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Euro-Currency Business Day
for the relevant currency in the case of a Euro-Currency Borrowing;
(b) the currency and aggregate amount (in such currency) of such
Borrowing;
(c) if such Borrowing is comprised of Dollar-Denominated Loans,
whether such Loans are to be Base Rate Loans or Euro-Dollar Loans; and
(d) in the case of a Euro-Currency Borrowing, the duration of the
initial Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
Section 2.03. Competitive Bid Borrowings.
(a) The Competitive Bid Option. In addition to Committed
Borrowings pursuant to Section 2.01, the Company may, as set forth in this
Section, request the Banks to make offers to make Competitive Bid Loans to any
of the Borrowers. The Banks may, but shall have no obligation to, make such
offers and the Company may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section.
(b) Competitive Bid Quote Request. When the Company wishes to
request offers to make Competitive Bid Loans under this Section, it shall
transmit to the Administrative Agent by telex or facsimile transmission a
Competitive Bid Quote Request substantially in the form of Exhibit B hereto so
as to be received no later than 10:00 A.M. (New York City time) on (x) the fifth
Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in the
case of a LIBOR Auction or (y) the Domestic Business Day immediately before the
date of Borrowing proposed therein, in the case of an Absolute Rate Auction (or,
in either case, such other time or date as the Company and the Administrative
Agent shall have mutually agreed and shall have notified to the Banks not later
than the date of the Competitive Bid Quote Request for the first LIBOR Auction
or Absolute Rate Auction for which such change is to be effective) specifying:
(i) the proposed date of Borrowing, which shall be a
Euro-Currency Business Day for the relevant currency in the case of a LIBOR
Auction or a Domestic Business Day in the case of an Absolute Rate Auction;
(ii) the proposed currency and the aggregate amount (in such
currency) of such Borrowing, which shall be $5,000,000 or a larger multiple of
$1,000,000 for each Borrowing of Dollar-Denominated Loans and at least
$5,000,000 in Dollar Amount for each Borrowing in an Alternative Currency;
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period; and
(iv) if such Borrowing is comprised of Dollar-Denominated Loans,
whether the Competitive Bid Quotes requested are to set forth a Competitive Bid
Margin or a Competitive Bid Absolute Rate.
15
The Company may request offers to make Competitive Bid Loans for
more than one Interest Period in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five Euro-Dollar Business
Days (or such other number of days as the Company and the Administrative Agent
may agree) of any other Competitive Bid Quote Request.
(c) Invitation for Competitive Bid Quotes. Promptly upon receipt
of a Competitive Bid Quote Request, the Administrative Agent shall send to the
Banks by telex or facsimile transmission an Invitation for Competitive Bid
Quotes substantially in the form of Exhibit C hereto, which shall constitute an
invitation by the Company to each Bank to submit Competitive Bid Quotes offering
to make the Competitive Bid Loans to which such Competitive Bid Quote Request
relates in accordance with this Section.
(d) Submission and Contents of Competitive Bid Quotes. (i) Each
Bank may submit a Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Invitation for Competitive Bid Quotes.
Each Competitive Bid Quote must comply with the requirements of this subsection
(d) and must be submitted to the Administrative Agent by telex or facsimile
transmission at its office in New York City referred to in Section 11.01 not
later than (x) 2:00 P.M. (New York City time) on the fourth Euro-Currency
Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) 9:45 A.M. (New York City time) on the proposed date of Borrowing,
in the case of an Absolute Rate Auction (or, in either case, such other time or
date as the Company and the Administrative Agent shall have mutually agreed and
shall have notified to the Banks not later than the date of the Competitive Bid
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which
such change is to be effective); provided that Competitive Bid Quotes submitted
by the Administrative Agent (or any affiliate of the Administrative Agent) in
the capacity of a Bank may be submitted, and may only be submitted, if the
Administrative Agent or such affiliate notifies the Company of the terms of the
offer or offers contained therein not later than (x) one hour prior to the
deadline for the other Banks, in the case of a LIBOR Auction, or (y) 15 minutes
prior to the deadline for the other Banks, in the case of an Absolute Rate
Auction. Subject to Articles 3 and 6, any Competitive Bid Quote so made shall be
irrevocable except with the written consent of the Administrative Agent given on
the instructions of the Company.
(ii) Each Competitive Bid Quote shall be in substantially the
form of Exhibit D hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the currency and the principal amount (in the relevant
currency) of the Competitive Bid Loan for which each such offer is being made,
which principal Dollar Amount (w) may be greater than or less than the
Commitment of the quoting Bank, (x) for each Borrowing of Dollar-Denominated
Loans, must be $5,000,000 or a larger multiple of $1,000,000 and for each
Borrowing in an Alternative Currency, must be at least $5,000,000, (y) may not
exceed the principal amount of Competitive Bid Loans for which offers being made
by such quoting Bank may be accepted, and (z) may be subject to an aggregate
limitation as to the principal amount of Competitive Bid Loans for which offers
being made by such quoting Bank may be accepted,
16
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Competitive Bid Margin") offered
for each such Competitive Bid Loan, expressed as a percentage (specified to the
nearest 1/10,000th of 1%) to be added to or subtracted from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Competitive Bid
Absolute Rate") offered for each such Competitive Bid Loan, and
(E) the identity of the quoting Bank.
A Competitive Bid Quote may set forth up to five separate offers
by the quoting Bank with respect to each Interest Period specified in the
related Invitation for Competitive Bid Quotes.
(iii) Any Competitive Bid Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit D hereto or
does not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bid Quotes; or
(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly
notify the Company of the terms (x) of any Competitive Bid Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Competitive Bid
Quote that amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid Quote shall
be disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to the Company shall
specify (A) the aggregate principal amount of Competitive Bid Loans for which
offers have been received for each Interest Period specified in the related
Competitive Bid Quote Request, (B) the respective principal amounts and
Competitive Bid Margins or Competitive Bid Absolute Rates, as the case may be,
so offered and (C) if applicable, limitations on the aggregate principal amount
of Competitive Bid Loans for which offers in any single Competitive Bid Quote
may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Currency Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Company and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Competitive Bid Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Company shall notify the
17
Administrative Agent of the acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Competitive Bid Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Company may accept any Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request,
(ii) the Dollar Amount of (A) each Competitive Bid Borrowing of
Dollar-Denominated Loans must be $5,000,000 or a larger multiple of $1,000,000
and (B) each Competitive Bid Borrowing in an Alternative Currency must at least
be $5,000,000,
(iii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Competitive Bid Absolute Rates, as the case
may be, and
(iv) the Company may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the requirements of
this Agreement.
(g) Allocation by Administrative Agent. If offers are made by two
or more Banks with the same Competitive Bid Margins or Competitive Bid Absolute
Rates, as the case may be, for a greater aggregate principal amount than the
amount in respect of which such offers are accepted for the related Interest
Period, the principal amount of Competitive Bid Loans in respect of which such
offers are accepted shall be allocated by the Administrative Agent among such
Banks as nearly as possible (in multiples of $1,000,000 or its equivalent in
applicable Alternative Currency, as the Administrative Agent may deem
appropriate) in proportion to the aggregate principal amounts of such offers.
Determinations by the Administrative Agent of the amounts of Competitive Bid
Loans shall be conclusive in the absence of manifest error.
Section 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative
Agent shall promptly notify each Bank of the contents thereof (including the
name of the Borrower) and of such Bank's share (if any) of such Borrowing and
such Notice of Borrowing shall not thereafter be revocable by such Borrower.
(b) On the date of each Borrowing, each Bank participating
therein shall:
(i) if such Borrowing is to be made in Dollars, make available
its share of such Borrowing in Dollars, not later than 12:00 Noon (New York City
time), in Federal or other funds immediately available in New York City, to the
Administrative Agent at its address in New York City referred to in Section
11.01; or
(ii) if such Borrowing is to be made in an Alternative Currency,
make available its share of such Borrowing in such Alternative Currency (in such
funds as may then be customary for the settlement of international transactions
in such Alternative Currency) to the account of the Administrative Agent at such
time and place as shall have been notified by the Administrative Agent to the
Banks by not less than four Domestic Business Days' notice.
18
Unless the Administrative Agent determines that any applicable
condition specified in Article 3 has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the relevant
Borrower at the aforesaid address or place.
(c) Unless the Administrative Agent shall have received notice
from a Bank prior to the date of any Borrowing that such Bank will not make
available to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section and the Administrative Agent may, in reliance
upon such assumption, make available to the relevant Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and such Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of such Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Rate (if such Borrowing is in Dollars) or the applicable
London Interbank Offered Rate (if such Borrowing is in an Alternative Currency).
If such Bank shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Bank's Loan included in such
Borrowing for purposes of this Agreement.
Section 2.05. Notes. (a) The Administrative Agent shall maintain
a register (the "Register") on which it will record the Commitment of each Bank,
each Loan made by such Bank and each repayment of any Loan made by such Bank.
Any such recordation by the Administrative Agent on the Register shall be
presumptively correct, absent manifest error. Failure to make any such
recordation, or any error in such recordation, shall not affect any Borrower's
obligations hereunder.
(b) Each Borrower hereby agrees that, promptly upon the request
of any Bank at any time, such Borrower shall deliver to such Bank a single Note,
in substantially the form of Exhibit A hereto, duly executed by such Borrower
and payable to the order of such Bank and representing the obligation of such
Borrower to pay the unpaid principal amount of Loans made to such Borrower by
such Bank, with interest as provided herein on the unpaid principal amount from
time to time outstanding.
(c) Each Bank shall record the date, currency, amount (in such
currency), type and maturity of each Loan made by it to each Borrower and the
date and amount of each payment of principal made by such Borrower with respect
thereto, and may, if such Bank so elects in connection with any transfer or
enforcement of any of its Notes, endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding; provided that the failure of such Bank to make any
such recordation or endorsement shall not affect the obligations of any Borrower
hereunder or under the Notes. Such Bank is hereby irrevocably authorized by each
Borrower so to endorse any Note of such Borrower and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
19
Section 2.06. Maturity of Loans. (a) Each Committed Loan shall
mature, and the principal amount thereof shall be due and payable, on the
Termination Date (or, if the Termination Date is not a Euro-Currency Business
Day for the relevant currency, the next preceding Euro-Currency Business Day for
such currency).
(b) Each Competitive Bid Loan included in any Competitive Bid
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the last day of the Interest Period applicable to such Borrowing.
Section 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due or is converted to a different type of
Loan, at a rate per annum equal to the Base Rate for such day. Such interest
shall be payable quarterly in arrears on each Quarterly Payment Date and, with
respect to the principal amount of any Base Rate Loan converted to a different
type of Loan, on the date such principal amount is so converted. Any overdue
principal of or interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 2% plus
the Base Rate for such day.
(b) Each Euro-Currency Loan shall bear interest on the
outstanding principal amount thereof, for each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Currency Margin for
such day plus the applicable London Interbank Offered Rate applicable for such
Interest Period. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, three
months after the first day thereof.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in the relevant
currency are offered to each of the Euro-Currency Reference Banks in the London
interbank market at approximately 11:00 A.M. (London time) two Euro-Currency
Business Days before the first day of such Interest Period in an amount
approximately equal to the principal amount of the Euro-Currency Loan of such
Euro-Currency Reference Bank to which such Interest Period is to apply and for a
period of time comparable to such Interest Period.
(c) Any overdue principal of or interest on any Euro-Currency
Loan shall bear interest, payable on demand, for each day from and including the
date payment thereof was due to but excluding the date of actual payment, at a
rate per annum equal to the sum of 2% plus the Euro-Currency Margin plus the
higher of (i) the London Interbank Offered Rate applicable to such Loan
immediately before it became overdue and (ii) a rate (the "Overnight LIBO Rate")
equal to the quotient obtained (rounded upward if necessary, to the next higher
1/100 of 1%) by dividing (x) the average (rounded upward, if necessary, to the
next higher 1/16 of 1%) of the respective rates per annum at which one day (or,
if such amount due remains unpaid more than three Euro-Currency Business Days,
then for such other period of time not longer than six months as the
Administrative Agent may select) deposits in the relevant currency in an amount
approximately equal to such overdue payment due to each of the Euro-Currency
Reference Banks are offered to such Euro-Currency Reference Bank in the London
interbank market for the applicable period determined as provided above by (y)
1.00 minus the Euro-Currency Reserve
20
Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the Base Rate
for such day).
(d) Subject to Section 8.01(a), each Competitive Bid LIBOR Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the sum of the
London Interbank Offered Rate for such Interest Period (determined in accordance
with Section 2.07(b) as if the related Competitive Bid LIBOR Borrowing were a
Euro-Currency Borrowing) plus (or minus) the Competitive Bid Margin quoted by
the Bank making such Loan in accordance with Section 2.03. Each Competitive Bid
Absolute Rate Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Competitive Bid Absolute Rate quoted by the Bank making such Loan in
accordance with Section 2.03. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof. Any overdue
principal of or interest on any Competitive Bid Loan shall bear interest,
payable on demand, for each day until paid (i) in the case of Dollar-Denominated
Loans, at a rate per annum equal to the sum of 2% plus the Base Rate for such
day and (ii) in the case of Euro-Currency Denominated Loans, at a rate per annum
determined in accordance with subsection 2.07(c) as if such Loan were
Euro-Currency Loans.
(e) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Company and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(f) Each Euro-Currency Reference Bank agrees to use its best
efforts to furnish quotations to the Administrative Agent as contemplated by
this Section. If any Euro-Currency Reference Bank does not furnish a timely
quotation, the Administrative Agent shall determine the relevant interest rate
on the basis of the quotation or quotations furnished by the remaining
Euro-Currency Reference Bank or Banks or, if none of such quotations is
available on a timely basis, the provisions of Section 8.01 shall apply.
Section 2.08. Fees. (a) The Company shall pay to the
Administrative Agent, for the account of the Banks ratably in proportion to
their Commitments, a facility fee in Dollars calculated for each day at the
Facility Fee Rate for such day on the aggregate amount of the Credit Exposures.
Such facility fee shall accrue for each day from and including the Effective
Date to but excluding the date the Credit Exposures are reduced to zero.
(b) The Company shall pay (i) to the Administrative Agent for the
account of the Banks ratably a letter of credit fee accruing daily on the
aggregate undrawn amount of all outstanding Letters of Credit at a rate per
annum equal to the Fully Drawn Margin for such day and (ii) to each Issuing Bank
for its own account, a letter of credit fronting fee accruing daily on the
aggregate amount then available for drawing under all Letters of Credit issued
by such Issuing Bank at such rate as may be mutually agreed between the Borrower
and such Issuing Bank from time to time.
21
(c) Accrued fees under subsections 2.08(a) and 2.08(b) shall be
payable quarterly in arrears on each Quarterly Payment Date, and on the date on
which the Commitments terminate in their entirety (and, if later, the date on
which the Credit Exposures are reduced to zero).
Section 2.09. Method of Electing Types of Interest Rates and
Interest Periods for Dollar-Denominated Loans. (a) The Dollar-Denominated Loans
included in each Committed Borrowing shall bear interest initially at the type
of interest rate specified by the Company in the applicable Notice of Committed
Borrowing. Thereafter, the Company may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject to the
provisions of Article 8), as follows:
(i) if such Loans are Base Rate Loans, the Company may elect to
convert such Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day; and
(ii) if such Loans are Euro-Dollar Loans, the Company may elect
to convert such Loans to Base Rate Loans or elect to continue such Loans as
Euro-Dollar Loans for an additional Interest Period, subject to Section 2.14 in
the case of any such conversion on any day other than the last day of the then
current Interest Period applicable to such Euro-Dollar Loans.
Each such election shall be made by delivering a notice to the
Administrative Agent not later than 10:00 A.M. (New York City time) on the third
Euro-Dollar Business Day before the conversion or continuation selected in such
notice is to be effective. Such notice may, if it so specifies, apply to only a
portion of the aggregate principal amount of the relevant Group of Loans;
provided that (i) such portion is allocated ratably among the Loans comprising
such Group of Loans and (ii) the Dollar Amount of the portion to which such
notice applies, and the remaining portion to which it does not apply, are each
at least $5,000,000. If no such notice is timely received prior to the end of an
Interest Period, the Company shall be deemed to have elected that such Group of
Loans be converted to Base Rate Loans.
(b) Each Notice of Interest Rate Election delivered pursuant to
subsection (a) above shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable clause of
subsection (a) above;
(iii) if the Loans comprising such Group of Loans are to be
converted, the new type of Loans and, if the Loans being converted are to be
Fixed Rate Loans, the duration of the next succeeding Interest Period applicable
thereto; and
(iv) if such Loans are to be continued as Euro-Dollar Loans for
an additional Interest Period, the duration of such additional Interest Period.
Each Interest Period specified in a Notice of Interest Rate
Election shall comply with the provisions of the definition of Interest Period.
22
(c) Upon receipt of a Notice of Interest Rate Election from the
Company pursuant to subsection (a) above, the Administrative Agent shall
promptly notify each Bank of the contents thereof and such notice shall not
thereafter be revocable by the Company.
Section 2.10. Method of Electing Interest Periods for Alternative
Currency Loans; Required Prepayments. (a) The initial Interest Period for each
Alternative Currency Loan shall be specified by the Company in the applicable
Notice of Committed Borrowing. The Company may specify the duration of each
subsequent Interest Period applicable to such Group of Loans by delivering to
the Administrative Agent, not later that 10:00 A.M. (New York City time) on the
third Euro-Currency Business Day before the end of the immediately preceding
Interest Period, a notice specifying the Group of Loans (or portion thereof) to
which such notice applies and the duration of such subsequent Interest Period
(which shall comply with the provisions of the definition of Interest Period).
If no such Notice of Interest Rate Election is timely received by the
Administrative Agent before the end of any applicable Interest Period, the
Company shall be deemed to have elected that the subsequent Interest Period for
such Group of Loans shall have a duration of one month (subject to the
provisions of the definition of Interest Period).
(b) Three Euro-Currency Business Days before both (i) the end of
each Interest Period applicable to any Group of Loans denominated in an
Alternative Currency and, (ii) each Quarterly Payment Date on which there are
outstanding Letter of Credit Liabilities denominated in an Alternative Currency,
the Administrative Agent shall recalculate the Dollar Amount of, in the case of
clause (i), such Group of Loans and in the case of clause (ii), all Letter of
Credit Liabilities denominated in an Alternative Currency, and shall notify the
Company of such recalculated Dollar Amount. Within three Euro-Currency Business
Days of receipt of such notice, the Borrowers shall prepay Loans ratably to the
extent (if any) required so that, after giving effect to such recalculation of
the Dollar Amount and such prepayment, (i) the aggregate Dollar Amount of all
Loans and Letter of Credit Liabilities then outstanding to all Eligible
Subsidiaries does not exceed $100,000,000 and (ii) the Total Outstanding Amount
does not exceed the aggregate amount of the Commitments.
(c) If on or before the first day of any Interest Period
applicable to any Group of Loans denominated in an Alternative Currency, there
shall occur any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which would
in the opinion of the Administrative Agent make it impracticable for such Group
of Loans to continue to be denominated in the relevant Alternative Currency, the
Administrative Agent shall forthwith give notice thereof to the Company and the
Banks, in which event the relevant Borrower shall repay such Group of Loans in
full on the later of (i) the last day of the immediately preceding Interest
Period or (ii) the third Euro-Currency Business Day after the Company receives
such notice from the Administrative Agent. Such Group of Loans shall bear
interest on and after the last day of such immediately preceding Interest Period
at a rate per annum determined for each day as provided in Section 2.07(c)
(except that if the repayment due date is determined pursuant to the foregoing
clause (ii), the 2% per annum additional interest applicable to overdue amounts
shall not apply prior to such due date).
Section 2.11. Termination or Reduction of Commitments. (a) The
Company may, upon at least three Domestic Business Days' notice to the
Administrative Agent, (i)
23
terminate the Commitments at any time, if no Loans or Letter of Credit
Liabilities are outstanding at such time or (ii) ratably reduce from time to
time by an aggregate Dollar Amount of $10,000,000 or any larger multiple
thereof, the aggregate amount of the Commitments in excess of the Total
Outstanding Amount.
(b) The Commitments shall terminate on the Termination Date, and
any Loans then outstanding (together with accrued interest thereon) shall be due
and payable on such date.
Section 2.12. Optional Prepayments. Any Borrower may:
(i) upon at least one Domestic Business Day's notice to the
Administrative Agent, prepay its Group of Base Rate Loans (or any Competitive
Bid Loans bearing interest at the Base Rate pursuant to Section 8.01(a)), in
whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000;
(ii) upon at least three Euro-Dollar Business Days' notice to the
Administrative Agent, subject to Section 2.14, prepay any Group of Euro-Dollar
Loans, in whole at any time, or from time to time in part in amounts aggregating
$5,000,000 or any larger multiple of $1,000,000; or
(iii) upon at least three Euro-Currency Business Days' notice to
the Administrative Agent, subject to Section 2.14, prepay any Group of
Alternative Currency Loans, in whole at any time, or from time to time in part;
provided that the aggregate Dollar Amount of any partial prepayment is at least
$5,000,000;
in each case, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Loans of the several Banks included in such
Group of Loans.
(b) Except as provided in Section 8.02, no Borrower may prepay
all or any portion of the principal amount of any Competitive Bid Loan (except a
Competitive Bid Loan bearing interest at the Base Rate pursuant to Section
8.01(a)) prior to the maturity thereof without the consent of the Bank making
such Loan.
(c) Upon receipt of a notice of prepayment pursuant to this
Section, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share (if any) of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
Section 2.13. General Provisions as to Payments. (a) Each payment
of principal of, and interest on, the Dollar-Denominated Loans and each payment
of fees hereunder, shall be made in Dollars not later than 12:00 Noon (New York
City time) on the date when due, in Federal or other funds immediately available
in New York City, to the Administrative Agent at its address in New York City
referred to in Section 11.01.
(b) Each payment of principal of, and interest on, the
Alternative Currency-Denominated Loans shall be made in the relevant Alternative
Currency in such funds as may then be customary for the settlement of
international transactions in such Alternative Currency,
24
for the account of the Administrative Agent at such time and at such place as
shall have been notified by the Administrative Agent to the Company and the
Banks by not less than four Euro-Currency Business Days' notice.
(c) Promptly upon receiving any payment for the account of the
Banks, the Administrative Agent will distribute to each Bank, in the currency
and type of funds received by the Administrative Agent, such Bank's ratable
share of such payment.
(d) Whenever any payment of principal of, or interest on, the
Base Rate Loans or Letter of Credit Liabilities or of fees shall be due on a day
which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of, or interest on, the Euro-Currency Loans or the Competitive Bid
Loans shall be due on a day which is not a Euro-Currency Business Day for the
relevant currency, the date for payment thereof shall be extended to the next
succeeding Euro-Currency Business Day for such currency, unless such
Euro-Currency Business Day falls in another calendar month, in which case the
date for payment thereof shall be the next preceding Euro-Currency Business Day
for such currency. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon shall be payable for such
extended time.
(e) Unless the Administrative Agent shall have received notice
from the Company prior to the date on which any payment is due from any Borrower
to the Banks hereunder that such Borrower will not make such payment in full,
the Administrative Agent may assume that such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each Bank on such
due date an amount equal to the amount then due such Bank. If and to the extent
that such Borrower shall not have so made such payment, each Bank shall repay to
the Administrative Agent forthwith on demand such amount distributed to such
Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at (i) the Federal Funds Rate (if such amount was
distributed in Dollars) or (ii) the rate per annum at which one day deposits in
the relevant currency are offered to the Administrative Agent in the London
interbank market for such day (if such amount was distributed in an Alternative
Currency).
Section 2.14. Funding Losses. If a Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any Fixed Rate Loan is
converted to a different type of Loan (pursuant to Section 2.12, Article 6 or 8
or otherwise) on any day other than the last day of an Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to
Section 2.07(c), or if a Borrower fails to borrow, prepay, convert or continue
any Fixed Rate Loans (including a failure to borrow in an Alternative Currency
due to the occurrence of any event described in Section 3.02(f)) after notice
has been given to any Bank in accordance with Sections 2.04(a), 2.09(c) or
2.12(c), such Borrower shall reimburse each Bank within 15 days after demand for
any resulting loss or expense incurred by it (or by an existing or prospective
Participant in the related Loan), including (without limitation) any loss
incurred in obtaining, liquidating or employing deposits from third parties, but
excluding loss of margin for the period after any such payment or failure to
borrow, prepay, convert or continue, provided that such
25
Bank shall have delivered to such Borrower a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
Section 2.15. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
Section 2.16. Judgment Currency. If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due from any Borrower
hereunder or under any Note in the currency expressed to be payable herein (the
"specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the specified currency with such other
currency at the Administrative Agent's New York office on the Euro-Currency
Business Day preceding that on which final judgment is given. The obligations of
each Borrower in respect of any sum due to any Bank or the Administrative Agent
hereunder or under any Note shall, notwithstanding any judgment in a currency
other than the specified currency, be discharged only to the extent that, on the
Euro-Currency Business Day following receipt by such Bank or the Administrative
Agent (as the case may be) of any sum adjudged to be so due in such other
currency, such Bank or the Administrative Agent (as the case may be) may in
accordance with normal banking procedures purchase the specified currency with
such other currency. If the amount of the specified currency so purchased is
less than the sum originally due to such Bank or the Administrative Agent, as
the case may be, in the specified currency, the relevant Borrower agrees, to the
fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Bank or the Administrative
Agent, as the case may be, against such loss, and if the amount of the specified
currency so purchased exceeds (a) the sum originally due to any Bank or the
Administrative Agent, as the case may be, in the specified currency and (b) any
amounts shared with other Banks as a result of allocations of such excess as a
disproportionate payment to such Bank under Section 11.04, such Bank or the
Administrative Agent, as the case may be, agrees to remit such excess to the
relevant Borrower.
Section 2.17. Reserve Costs. (a) If and so long as a reserve
requirement of the type described in the definition of "Euro-Currency Reserve
Percentage" is prescribed by the Board of Governors of the Federal Reserve
System (or any successor), each Bank subject to such requirement may require
each Borrower to pay, contemporaneously with each payment of interest on each of
such Bank's Euro-Currency Loans to such Borrower, additional interest on such
Euro-Currency Loan at a rate per annum determined by such Bank up to but not
exceeding the excess of (i) (A) the applicable London Interbank Offered Rate
divided by (B) one minus the Euro-Currency Reserve Percentage over (ii) the
applicable London Interbank Offered Rate. Any Bank wishing to require payment of
such additional interest (x) shall so notify the Borrowers and the
Administrative Agent, in which case such additional interest on the
Euro-Currency Loans of such Bank shall be payable to such Bank at the place
indicated in such notice with respect to each Interest Period commencing at
least three Euro-Currency Business Days after such Bank gives such notice and
(y) shall notify each Borrower, at least five Euro-Currency Business Days
26
before each date on which interest is payable on its Euro-Currency Loans, of the
amount then due to such Bank under this Section.
(b) If and so long as any Bank is required to make special
deposits with the Bank of England, to maintain reserve asset ratios or to pay
fees in respect of such Bank's Euro-Currency Loans in any Alternative Currency,
such Bank may require the relevant Borrower to pay, contemporaneously with each
payment of interest on each of such Loans, additional interest on such Loan at a
rate per annum equal to the Mandatory Costs Rate calculated in accordance with
the formula and in the manner set forth in Exhibit L hereto.
(c) If and so long as any Bank is required to comply with reserve
assets, liquidity, cash margin or other requirements of any monetary or other
authority (including any such requirement imposed by the European Central Bank
or the European System of Central Banks, but excluding requirements referred to
in subsections (a) and (b) above) in respect of any of such Bank's Euro-Currency
Loans, such Bank may require the relevant Borrower to pay, contemporaneously
with each payment of interest on each of such Bank's Euro-Currency Loans subject
to such requirements, additional interest on such Loan at a rate per annum
specified by such Bank to be the cost to such Bank of complying with such
requirements in relation to such Loan.
(d) Any additional interest owed pursuant to subsection (a), (b)
or (c) above shall be determined by the relevant Bank, which determination shall
be conclusive and binding for all purposes except in the case of manifest error,
and notified to the relevant Borrower (with a copy to the Administrative Agent)
at least five Euro-Currency Business Days before each date on which interest is
payable for the relevant Loan, and such additional interest so notified to the
relevant Borrower by such Bank shall be payable to the Administrative Agent for
the account of such Bank on each date on which interest is payable for such
Loan.
Section 2.18. Letters of Credit.
(a) Commitment to Issue Letters of Credit. Subject to the terms
and conditions hereof, each Issuing Bank agrees to issue Letters of Credit
denominated in Dollars or an Alternative Currency from time to time before the
Letter of Credit Termination Date upon the request of any Borrower; provided
that, immediately after each Letter of Credit is issued the Total Outstanding
Amount shall not exceed the aggregate amount of the Commitments and the
aggregate Dollar Amount of the Letter of Credit Liabilities shall not exceed
$30,000,000. Upon the date of issuance by an Issuing Bank of a Letter of Credit,
the Issuing Bank shall be deemed, without further action by any party hereto, to
have sold to each Bank, and each Bank shall be deemed, without further action by
any party hereto, to have purchased from the Issuing Bank, a participation in
such Letter of Credit and the related Letter of Credit Liabilities in the
proportion its respective Commitment bears to the aggregate Commitments.
(b) Method for Issuance; Terms; Extensions.
(i) The Borrower shall give the Issuing Bank notice at least (x)
three Domestic Business Days in case of Letters of Credit denominated in Dollars
and (y) three Euro-Currency Business Days in case of Letters of Credit
denominated in an Alternative Currency (or such shorter notice as may be
acceptable to the Issuing Bank in its discretion) prior to the requested
27
issuance of a Letter of Credit (or, in the case of renewal or extension, prior
to the Issuing Bank's deadline for notice of nonextension) specifying the date
such Letter of Credit is to be issued, and describing the terms of such Letter
of Credit and the nature of the transactions to be supported thereby (such
notice, including any such notice given in connection with the extension of a
Letter of Credit, a "Notice of Issuance"). Upon receipt of a Notice of Issuance,
the Issuing Bank shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of the amount of such Bank's participation in such Letter of Credit.
(ii) The obligation of the Issuing Bank to issue each Letter of
Credit shall, in addition to the conditions precedent set forth in Section 3.02
be subject to the conditions precedent that such Letter of Credit shall be in
such form and contain such terms as shall be reasonably satisfactory to the
Issuing Bank and that the Borrower shall have executed and delivered such other
customary instruments and agreements relating to such Letter of Credit as the
Issuing Bank shall have reasonably requested. The Borrower shall also pay to the
Issuing Bank for its own account issuance, drawing, amendment, settlement and
extension charges, if any, in the amounts and at the times as agreed between the
Borrower and the Issuing Bank.
(iii) The extension or renewal of any Letter of Credit shall be
deemed to be an issuance of such Letter of Credit, and if any Letter of Credit
contains a provision pursuant to which it is deemed to be extended unless notice
of termination is given by the Issuing Bank, the Issuing Bank shall timely give
such notice of termination unless it has theretofore timely received a Notice of
Issuance and the other conditions to issuance of a Letter of Credit have also
theretofore been met with respect to such extension. Each Letter of Credit shall
expire at or before the close of business on the date that is one year after
such Letter of Credit is issued (or, in the case of any renewal or extension
thereof, one year after such renewal or extension); provided that (i) a Letter
of Credit may contain a provision pursuant to which it is deemed to be extended
on an annual basis unless notice of termination is given by the Issuing Bank and
(ii) in no event will a Letter of Credit expire (including pursuant to a renewal
or extension thereof) on a date later than the Letter of Credit Termination
Date.
(c) Payments; Reimbursement Obligations.
(i) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the Issuing Bank shall
notify the Administrative Agent and the Administrative Agent shall promptly
notify the Borrower and each other Bank as to the amount and the currency to be
paid as a result of such demand or drawing and the date such payment is to be
made by the Issuing Bank (the "Payment Date"). The Borrower shall be irrevocably
and unconditionally obligated to reimburse the Issuing Bank for any amounts paid
by the Issuing Bank upon any drawing under any Letter of Credit (a
"Reimbursement Obligation"), without presentment, demand, protest or other
formalities of any kind. Such reimbursement shall be due (x) in the case of a
Letter of Credit denominated in Dollars, on the Payment Date, and (y) in the
case of a Letter of Credit denominated in an Alternative Currency, on the third
Euro-Currency Business Day following the Payment Date; provided that no such
payment shall be due from the Borrower any earlier than the date of receipt by
it of notice of its obligation to make such payment (or, if such notice is
received by the Borrower after 10:00 A.M. (New York City time) on any date, on
(x) the next succeeding Domestic Business Day in the case of Letters of
28
Credit denominated in Dollars and (y) the third succeeding Euro-Currency
Business Day in the case of Letters of Credit denominated in an Alternative
Currency) (the date so determined with respect to any Reimbursement Obligation,
the "Reimbursement Date"); and provided further that if and to the extent any
such reimbursement is not made by the Borrower in accordance with this clause
(i) or clause (ii) below on the Payment Date, then (irrespective of when notice
thereof is received by the Borrower), such reimbursement obligation shall bear
interest, payable on demand, for each day from and including the Payment Date to
but not including the date such reimbursement obligation is paid in full at a
rate per annum equal to (x) the rate applicable to Base Rate Loans in case of
Letters of Credit denominated in Dollars and (y) the sum of the Euro-Currency
Margin plus the Overnight LIBO Rate in case of Letter of Credit denominated in
an Alternative Currency plus, in the case of amounts in any currency not paid
when due, 2.00%. All payments in respect of the principal amount of the
Reimbursement Obligation of the Borrower with respect of any Letter of Credit
and interest thereon shall be made in the same currency as the related Letter of
Credit was denominated, and shall be made in the funds specified in Section 2.13
for payments in such currency.
(ii) If the Commitments remain in effect on the Reimbursement
Date, the principal amount of the Reimbursement Obligation shall, if and to the
extent that such amount would be permitted as a Borrowing of Committed Loans
pursuant to Section 3.02, and unless the Borrower otherwise instructs the
Administrative Agent by not less than (x) one Domestic Business Day's prior
notice in the case of Letters of Credit denominated in Dollars and, (y) three
Euro-Currency Business Days' prior notice in the case of Letters of Credit
denominated in an Alternative Currency, convert automatically on the
Reimbursement Date to (x) Base Rate Loans in the case of Letters of Credit
denominated in Dollars and (y) Alternative Currency Loans in the case of Letters
of Credit denominated in an Alternative Currency. The initial Interest Period
applicable to any such Alternative Currency Loan converted pursuant to this
clause (ii) shall, subject to the provisions of the definition of Interest
Period, commence on the Reimbursement Date and end one month thereafter. The
Administrative Agent shall, on behalf of the Borrower (which hereby irrevocably
directs the Administrative Agent so to act on its behalf), give notice no later
than 12:00 Noon (New York City time) on the Payment Date requesting each Bank to
make, and each Bank hereby agrees to make, a Base Rate Loan, or an Alternative
Currency Loan, as the case may be, on the Reimbursement Date in an amount equal
to such Bank's Percentage of the Reimbursement Obligation with respect to which
such notice relates. Each Bank shall make such Loan available to the
Administrative Agent in accordance with Section 2.04 on the date specified in
such notice. The Administrative Agent shall pay the proceeds of such Loans to
the Issuing Bank, which shall immediately apply such proceeds to repay the
Reimbursement Obligation.
(iii) To the extent the Reimbursement Obligation is not refunded
by a Bank pursuant to clause (ii) above, such Bank will pay to the
Administrative Agent, for the account of the Issuing Bank, immediately upon the
Issuing Bank's demand at any time during the period commencing after such
Reimbursement Obligation arises until reimbursement therefor in full by the
Borrower, an amount equal to such Bank's Percentage of such Reimbursement
Obligation, together with interest on such amount for each day from the date of
the Issuing Bank's demand for such payment (or, if such demand is made after
1:00 P.M. (New York City time) on such date, from the next succeeding (x)
Domestic Business Day in case of Letters of Credit denominated in Dollars and
(y) Euro-Currency Business Day in case of Letters of Credit
29
denominated in an Alternative Currency) to the date of payment by such Bank of
such amount at a rate of interest per annum equal to (x) the Federal Funds Rate
for the first three Domestic Business Days after the date of such demand and
thereafter at a rate per annum equal to the Base Rate for each additional day in
case of Letters of Credit denominated in Dollars and (y) the Overnight LIBO Rate
for the first three Euro-Currency Business Days after the date of such demand
and thereafter the sum of the Overnight LIBO Rate plus the Euro-Currency Margin,
in the case of Letters of Credit denominated in an Alternative Currency. The
Issuing Bank will pay to each Bank ratably all amounts received from the
Borrower for application in payment of its Reimbursement Obligations in respect
of any Letter of Credit, but only to the extent such Bank has made payment to
the Issuing Bank in respect of such Letter of Credit pursuant hereto; provided
that in the event such payment received by the Issuing Bank is required to be
returned, such Bank will return to the Issuing Bank any portion thereof
previously distributed to it by the Issuing Bank.
(d) Obligations Absolute. The obligations of the Borrower and
each Bank under subsection (c) above shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement, under all circumstances whatsoever, including without limitation
the following circumstances:
(i) any lack of validity or enforceability of this Agreement or
any Letter of Credit or any document related hereto or thereto;
(ii) any amendment or waiver of or any consent to departure from
all or any of the provisions of this Agreement or any Letter of Credit or any
document related hereto or thereto, provided by any party affected thereby;
(iii) the use which may be made of the Letter of Credit by, or
any acts or omission of, a beneficiary of a Letter of Credit (or any Person for
whom the beneficiary may be acting);
(iv) the existence of any claim, set-off, defense or other rights
that the Borrower may have at any time against a beneficiary of a Letter of
Credit (or any Person for whom the beneficiary may be acting), any Bank
(including the Issuing Bank) or any other Person, whether in connection with
this Agreement or the Letter of Credit or any document related hereto or thereto
or any unrelated transaction;
(v) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever;
(vi) payment under a Letter of Credit against presentation to the
Issuing Bank of documents that do not comply with the terms of such Letter of
Credit;
(vii) any termination of the Commitments prior to, on or after
the Payment Date for any Letter of Credit, whether at the scheduled termination
thereof, by operation of Section 6.01 or otherwise; or
(viii) any other act or omission to act or delay of any kind by
any Bank (including the Issuing Bank), the Administrative Agent or any other
Person or any other event or
30
circumstance whatsoever that might, but for the provisions of this subsection
(viii), constitute a legal or equitable discharge of or defense to the
Borrower's or the Bank's obligations hereunder;
provided, that this Section 2.18(d) shall not limit the rights of
the Borrower under Section 2.18(e)(ii).
(e) Indemnification; Expenses.
(i) The Borrower hereby indemnifies and hold harmless each Bank
(including each Issuing Bank) and the Administrative Agent from and against any
and all liabilities, losses, damages, costs or expenses of any kind, including,
without limitation, the reasonable fees and disbursements of counsel (including,
without limitation, the reasonable allocated costs of in-house counsel), which
may be incurred by it in connection with a Letter of Credit issued pursuant to
this Section 2.18; provided that the Borrower shall not be required to indemnify
any Bank, or the Administrative Agent, for such Person's own gross negligence or
willful misconduct as finally determined by a court of competent jurisdiction.
(ii) None of the Banks (including, subject to clause (y) below,
an Issuing Bank) nor the Administrative Agent nor any of their officers or
directors or employees or agents shall be liable or responsible, by reason of or
in connection with the execution and delivery or transfer of or payment or
failure to pay under any Letter of Credit, including without limitation any of
the circumstances enumerated in subsection (d) above; provided that,
notwithstanding Sections 2.18(d), the Borrower shall have a claim for direct
(but not consequential) damage suffered by it, to the extent finally determined
by a court of competent jurisdiction to have been caused by (x) the Issuing
Bank's gross negligence or willful misconduct in determining whether documents
presented under any Letter of Credit complied with the terms of such Letter of
Credit or (y) the Issuing Bank's failure to pay under any Letter of Credit after
the presentation to it of documents strictly complying with the terms and
conditions of the Letter of Credit. The parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its discretion,
either accept and make payment to the beneficiary of such Letter of Credit upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(iii) Nothing in this subsection (e) is intended to limit the
obligations of the Borrower under any other provision of this Agreement. To the
extent the Borrower does not indemnify an Issuing Bank as required by this
subsection, the Banks agree to do so ratably in accordance with their
Commitments.
ARTICLE 3
Conditions
Section 3.01. Effectiveness. This Agreement shall become
effective on the date the Administrative Agent shall have received:
31
(a) counterparts of this Agreement signed by each of the parties
listed on the signature pages hereof (or, in the case of any party as to which
an executed counterpart shall not have been received, by the Administrative
Agent shall have received, in form satisfactory to it, facsimile, telex or other
written confirmation from such party that it has executed a counterpart hereof);
(b) an opinion of Xxxxxxx X. Xxxxxx, Esq., Corporate Vice
President, General Counsel and Secretary of the Company, substantially in the
form of Exhibit E hereto and covering such additional matters relating to the
transactions contemplated hereby as the Required Banks may reasonably request;
(c) an opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the
Administrative Agent, substantially in the form of Exhibit F hereto and covering
such additional matters relating to the transactions contemplated hereby as the
Required Banks may reasonably request;
(d) all documents the Administrative Agent may reasonably request
relating to the existence of the Company, the corporate authority for and the
validity of this Agreement and the Notes of the Company, and any other matters
relevant hereto, all in form and substance satisfactory to the Administrative
Agent; and
(e) evidence satisfactory to the Administrative Agent of the
payment of all principal of and interest on any loans outstanding under, and all
accrued commitment fees under, the Existing Credit Facility, and the termination
of the commitments thereunder.
The Administrative Agent shall promptly notify the Company and
the Banks of the Effective Date, and such notice shall be conclusive and binding
on all parties hereto. The Banks that are parties to the Existing Credit
Agreement, comprising the "Required Banks" as defined therein, and the Company
agree to eliminate the requirement under Section 2.11 of the Existing Credit
Agreement that notice of optional termination of the commitments thereunder be
given three Domestic Business Days in advance, and further agree that the
commitments under the Existing Credit Agreement shall terminate in their
entirety simultaneously with and subject to the effectiveness of this Agreement
and the Company shall be obliged to pay the accrued facility fees thereunder to
but excluding the date of such effectiveness.
Section 3.02. Borrowings and Issuance of Letters of Credit. The
obligation of any Bank to make a Loan on the occasion of any Borrowing and the
obligation of an Issuing Bank to issue (or renew or extend the term of) any
Letter of Credit is subject to the satisfaction of the following conditions:
(a) the fact that the Effective Date shall have occurred on or
prior to October 14, 2002;
(b) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.02 or 2.03, as the case may be or a Notice of Issuance
as required by Section 2.18(b);
(c) the fact that, immediately after such Borrowing, the Total
Outstanding Amount will not exceed the aggregate amount of the Commitments, the
aggregate Dollar Amount of the Letter of Credit Liabilities shall not exceed
$30,000,000 (or, if less, the aggregate
32
amount of the Commitments) and the aggregate Dollar Amount of all Loans and
Letters of Credit then outstanding to all Eligible Subsidiaries shall not exceed
$100,000,000;
(d) the fact that, immediately before and after such Borrowing,
no Default shall have occurred and be continuing;
(e) the fact that the representations and warranties of the
Borrowers contained in this Agreement (other than those made in Section 4.04(b))
shall be true on and as of the date of such Borrowing; and
(f) in the case of an Alternative Currency-Denominated Borrowing,
there shall not have occurred any change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls
which would in the opinion of the Administrative Agent make it impracticable for
such Borrowing to be denominated in the relevant Alternative Currency.
Each Borrowing or issuance of any Letter of Credit hereunder
shall be deemed to be a representation and warranty by the Company on the date
of such Borrowing as to the facts specified in clauses (c),(d) and (e) of this
Section.
Section 3.03. First Borrowing by Each Eligible Subsidiary. The
obligation of each Bank to make a Loan on the occasion of the first Borrowing by
each Eligible Subsidiary is subject to the satisfaction of the following further
conditions:
(a) receipt by the Administrative Agent of an Election to
Participate duly executed by such Eligible Subsidiary and the Company; and
(b) receipt by the Administrative Agent of all documents which it
may reasonably request relating to the existence of such Eligible Subsidiary,
the corporate authority for and the validity of its Election to Participate (if
any), this Agreement and its Notes, and any other matters relevant thereto, all
in form and substance satisfactory to the Administrative Agent.
ARTICLE 4
Representations And Warranties
The Company represents and warrants that:
Section 4.01. Corporate Existence and Power. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
Section 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Company of this
Agreement and its Notes are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official under any
provision of law or regulation applicable to the Company, and do not
33
contravene, or constitute a default under, any provision of law or regulation
applicable to the Company or of the restated certificate of incorporation or
by-laws of the Company or of any agreement, judgment, injunction, order, decree
or other instrument binding upon the Company or any of its Subsidiaries or
result in the creation or imposition of any Lien on any asset of the Company or
any of its Subsidiaries.
Section 4.03. Binding Effect. This Agreement constitutes a valid
and binding agreement of the Company and its Notes, when executed and delivered
in accordance with this Agreement, will constitute valid and binding obligations
of the Company.
Section 4.04. Financial Information. (a) The consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of June 28, 2002 on a
pro forma basis after giving effect to the AMO Spin-off and the related
consolidated statements of earnings and cash flows for the six months then
ended, a copy of which has been delivered to each of the Banks, fairly present,
in conformity with generally accepted accounting principles (except for the
absence of notes), the consolidated financial position of the Company and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such six-month period (subject to normal year-end
adjustments).
(b) Except for the AMO Spin-off, there has been no material
adverse change since December 31, 2001 in the business, financial position,
assets, liabilities or results of operations of the Company and its Consolidated
Subsidiaries, considered as a whole.
Section 4.05. Litigation. There is no action, suit, formal
investigation or other proceeding pending against, or to the knowledge of the
Company threatened against or affecting, the Company or any of its Subsidiaries
before any Governmental Authority in which there is a reasonable possibility of
an adverse decision which could materially adversely affect the business or
consolidated financial position of the Company and its Subsidiaries, taken as a
whole, or which in any manner draws into question the validity of this Agreement
or its Notes.
Section 4.06. Compliance with Erisa. Each member of the ERISA
Group has fulfilled its obligations under the minimum funding standards of ERISA
and the Internal Revenue Code with respect to each Plan and is in compliance in
all material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan, or made any amendment
to any Plan, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
Section 4.07. Environmental Matters. In the ordinary course of
its business, the Company conducts an ongoing review of the effect of
Environmental Laws on the business, operations and properties of the Company and
its Subsidiaries, in the course of which it identifies and evaluates associated
liabilities and costs (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties presently or
previously owned, any capital or operating expenditures required to achieve or
maintain compliance with
34
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat, any costs or
liabilities in connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third parties, including
employees, and any related costs and expenses). On the basis of this review, the
Company has reasonably concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws, are unlikely to have
a Materially Adverse Effect.
Section 4.08. Taxes. The Company and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary, except assessments which are being contested in good faith and as to
which adequate reserves have been provided. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of taxes or other
governmental charges are, in the reasonable opinion of the Company, adequate.
Section 4.09. Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
Section 4.10. Full Disclosure. All Information (as defined below)
heretofore furnished by the Company is, and all Information hereafter furnished
by the Company will be, true and accurate in all material respects on the date
as of which such Information is dated or certified (except for any projections
included therein, which projections shall have provided reasonable estimations
of future performance for the periods covered thereby subject to the uncertainty
and approximation inherent in any projections) and not incomplete by omitting to
state anything necessary to make such Information not misleading at such time
except to the extent later Information could reasonably have been expected to
supersede earlier Information. As used in this Section, the term "Information"
means (i) the information set forth in the Company's report on Form 10-K for its
fiscal year ended December 31, 2001 and in all subsequent reports on Forms 10-K,
10-Q and 8-K (or their equivalents) and registration statements (excluding
exhibits thereto and any registration statements on Form S-8 or its equivalent)
which the Company shall have filed with the SEC and (ii) all other information
furnished by the Company to the Administrative Agent or any Bank for purposes of
or in connection with this Agreement, but only if such other information is (x)
financial information, (y) furnished in writing to all the Banks or to the
Administrative Agent for distribution to all the Banks or (z) furnished at a
meeting to which all the Banks were invited.
Section 4.11. Subsidiaries. Each of the Company's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except where failures to obtain such licenses, authorizations, consents and
approvals would not, in the aggregate, have a Materially Adverse Effect.
Section 4.12. Good Title to Properties. The Company and its
Subsidiaries have good and marketable title to their respective properties and
assets (except properties and assets
35
that, in the aggregate, are not material to the Company and its Subsidiaries
taken as a whole), subject to no Liens of any kind, except such as would be
permitted under Section 5.10.
Section 4.13. Trademarks, Patents, Etc. The Company and its
Subsidiaries possess all trademarks, trade names, copyrights, patents and
licenses, or rights in any thereof, which are adequate in all material respects
for the conduct of their business (taken as a whole) as now conducted, without
pending litigation regarding the rights or, to the best knowledge of the
Company, any claimed rights of others except for those which could not
reasonably be expected to have a Materially Adverse Effect and those disclosed
in filings made with the SEC.
ARTICLE 5
Covenants
The Company agrees that, so long as any Bank has any Credit
Exposure hereunder:
Section 5.01. Information. The Company will deliver to each of
the Banks:
(a) promptly after the same is required to be filed with the SEC
pursuant to the Securities Exchange Act of 1934, and in any event within 105
days after the end of each fiscal year of the Company, a consolidated balance
sheet of the Company and its Consolidated Subsidiaries as of the end of such
fiscal year and the related consolidated statements of earnings and cash flows
for such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on in a manner acceptable to the SEC
by KPMG LLP or other independent public accountants of nationally recognized
standing;
(b) promptly after the same is required to be filed with the SEC
pursuant to the Securities Exchange Act of 1934, and in any event within 60 days
after the end of each of the first three quarters of each fiscal year of the
Company, an unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of the end of such quarter and the related
unaudited consolidated statements of earnings and cash flows for such quarter
and for the portion of the Company's fiscal year ended at the end of such
quarter, setting forth in the case of such earnings and cash flows in
comparative form the figures for the corresponding quarter and the corresponding
portion of the Company's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, generally accepted
accounting principles and consistency by the chief financial officer or the
chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or the chief accounting officer of the Company (i) setting
forth in reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Sections 5.07 to 5.10,
inclusive, on the date of such financial statements (including, without
limitation, the amount of Adjusted Cash) and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Company is taking or proposes
to take with respect thereto;
36
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) stating
whether anything has come to their attention to cause them to believe that any
Default existed on the date of such statements and (ii) confirming the
calculations set forth in the officer's certificate delivered simultaneously
therewith pursuant to clause (c) above;
(e) within five days after any officer of the Company obtains
knowledge of any Default, if such Default is then continuing, a certificate of
the chief financial officer or the chief accounting officer of the Company
setting forth the details thereof and the action which the Company is taking or
proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Company shall have filed with the SEC;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives
notice of intent to terminate any Plan under Section 4041(c) of ERISA, a copy of
such notice and other information filed with the PBGC; (vi) gives notice of
withdrawal from any Plan pursuant to Section 4063 of ERISA, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or
Multiemployer Plan or makes any amendment to any Plan which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of the chief financial officer or the chief accounting
officer of the Company setting forth details as to such occurrence and action,
if any, which the Company or applicable member of the ERISA Group is required or
proposes to take;
(i) promptly upon any officer of the Company obtaining knowledge
thereof, notice of any actual or proposed change in the rating of the Company's
outstanding senior unsecured long term debt securities by S&P or Xxxxx'x; and
(j) from time to time such additional information regarding the
financial position or business of the Company and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
37
Information required to be delivered pursuant to clauses 5.01(a), 5.01(b),
5.01(f) or 5.01(g) above shall be deemed to have been delivered on the date on
which the Borrower provides notice to the Banks that such information has been
posted on the Borrower's website on the Internet at the website address listed
on the signature pages hereof, at xxx.xxx/xxxxx/xxxxxxxx.xxx, at xxxxxxxxxx.xxx
or at another website identified in such notice and accessible by the Banks
without charge; provided that (i) such notice may be included in a certificate
delivered pursuant to clause 5.01(c) and (ii) the Borrower shall deliver paper
copies of the information referred to in clauses 5.01(a),5.01(b), 5.01(f) or
5.01(g) to any Bank which requests such delivery.
Section 5.02. Payment of Obligations. The Company will pay and
discharge, and will cause its Subsidiaries to pay and discharge, at or before
maturity (or the expiration of any applicable grace period, as the case may be),
all Material Debt and all other material obligations and liabilities, including,
without limitation, tax liabilities, except where the same may be contested in
good faith by appropriate proceedings, and will maintain, and will cause each
Subsidiary to maintain, in accordance with generally accepted accounting
principles, appropriate reserves (on a consolidated basis) for the accrual of
any of the same.
Section 5.03. Maintenance of Property; Insurance. The Company
will keep, and will cause each Subsidiary to keep, all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted; provided that the Company and its Subsidiaries shall not be
required to maintain any property or properties which are, in the reasonable
opinion of the Company, not material to the business of the Company and its
Consolidated Subsidiaries taken as a whole.
(b) The Company and its Subsidiaries will maintain (i) physical
damage insurance on all their real and personal properties (except properties
that, in aggregate, are not material to the Company and its Subsidiaries taken
as a whole) on an all risks basis (including the perils of flood and quake),
covering the repair and replacement cost of all such property and consequential
loss coverage for business interruption and extra expense, and (ii) public
liability insurance (including products/completed operations liability coverage)
in an amount not less than that which is usually insured against by companies
engaged in the same or a similar business in the same general area. All such
insurance shall be provided by insurers having an A.M. Best policyholders rating
of not less than B+ or such other insurers as the Required Banks may approve in
writing. The Company will deliver to the Banks, upon request of any Bank through
the Administrative Agent, from time to time full information as to the insurance
carried.
Section 5.04. Conduct of Business and Maintenance of Existence.
The Company will continue, and will cause its Subsidiaries to continue, to
engage in business of the same general type as now conducted by the Company and
its Subsidiaries, and will preserve, renew and keep in full force and effect,
and will cause each Subsidiary to preserve, renew and keep in full force and
effect, its respective legal existence and its respective rights, privileges and
franchises necessary or desirable in the normal conduct of business; provided
that the foregoing shall not prevent any Subsidiary (except an Eligible
Subsidiary that has not paid in full all principal, interest and other amounts
payable by it hereunder) from terminating its corporate existence or prevent the
Company or any Subsidiary from discontinuing any business or any right,
privilege or franchise, if all such terminations and discontinuances, in the
aggregate, would not in the reasonable opinion of the Company have a Materially
Adverse Effect.
38
Section 5.05. Compliance with Laws. The Company will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of Governmental
Authorities (including, without limitation, ERISA, environmental, and food and
drug, and the rules and regulations under each of the foregoing) except where
(i) the necessity of compliance therewith is contested in good faith by
appropriate proceedings or (ii) noncompliance therewith would not, in the
aggregate, have a Materially Adverse Effect.
Section 5.06. Inspection of Property, Books and Records. The
Company will keep, and will cause each Subsidiary to keep, proper books of
record and account in which full, true and correct entries shall be made of all
dealings and transactions in relation to its business and activities; and will
permit, and will cause each Subsidiary to permit, representatives of any Bank at
such Bank's expense to visit and inspect any of their respective properties, to
examine and make abstracts from any of their respective books and records and to
discuss their respective affairs, finances and accounts with their respective
officers, employees and independent public accountants, all at such reasonable
times and as often as may reasonably be desired.
Section 5.07. Subsidiary Debt. The Company will not permit its
Subsidiaries to incur or suffer to exist any Debt (excluding Debt owed to the
Company or a Wholly-Owned Subsidiary) in excess of 35% of Consolidated Net Worth
at any time in the aggregate for all Subsidiaries.
Section 5.08. Debt to Capitalization. The ratio of (i)
Consolidated Debt less Adjusted Cash to (ii) Consolidated Debt less Adjusted
Cash plus Adjusted Consolidated Net Worth will at no time be greater than
0.45:1.
Section 5.09. Minimum Consolidated Net Worth. Consolidated Net
Worth will at no time be less than: (i) $635,000,000; (ii) increased at the end
of each of the Company's fiscal years ending after the Effective Date, by 50% of
Consolidated Net Income (if positive) (x) for the 2002 fiscal year, the third
and fourth quarter thereof and (y) for each other fiscal year, such fiscal year;
and (iii) increased by 100% of the amount by which Consolidated Net Worth is
increased from time to time after the Effective Date as a result of the issuance
or sale of the Company's capital stock.
Section 5.10. Negative Pledge. Neither the Company nor any
Consolidated Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:
(a) Liens existing on Effective Date securing Debt outstanding in
an aggregate principal amount not exceeding $20,000,000;
(b) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Debt incurred or assumed for
the purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within 90
days after the acquisition thereof;
39
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Company or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition
thereof by the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) any Lien arising out of the refinancing, extension, renewal
or refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is not
secured by any additional assets;
(g) Liens for taxes, assessments or governmental charges or
levies on its property if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith by
appropriate proceedings and as to which adequate reserves have been provided
for;
(h) Liens imposed by law, such as landlords', carriers',
warehousemen's and mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than 60
days past due;
(i) Liens arising out of statutory pledges or deposits under
applicable law relating to worker's compensation, unemployment insurance, social
security or similar obligations;
(j) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of similar nature and which do not in any
material way adversely affect or interfere with the use thereof in the business
of the Company and its Subsidiaries;
(k) banker's liens in the nature of rights of set-off arising in
the ordinary course of business;
(l) Liens not otherwise permitted by the foregoing clauses of
this Section, arising in the ordinary course of its business, which (i) do not
secure Debt, (ii) do not secure any obligation in an amount individually or in
the aggregate exceeding $100,000,000 and (iii) do not in the aggregate
materially detract from the value of its assets or materially impair the use
thereof in the operation of its business; and
(m) Liens not otherwise permitted by the foregoing clauses of
this Section securing Debt in an aggregate principal amount at any time
outstanding not to exceed 15% of Consolidated Net Worth.
Section 5.11. Consolidations, Mergers and Sales of Assets. The
Company will not consolidate or merge with or into any other Person; provided
that the Company may merge with a Person if (A) the Company is the corporation
surviving such merger and (B) immediately after giving effect to any such
merger, no Default shall have occurred and be continuing and all the
representations and warranties of the Company contained in this Agreement shall
be true. The Company will not, and will not permit its Subsidiaries to, sell,
lease or otherwise transfer,
40
directly or indirectly, all or any substantial part of the assets of the Company
and its Subsidiaries, taken as a whole, to any other Person.
Section 5.12. Use of Proceeds. The proceeds of the Loans made
under this Agreement will be used by the Borrowers for general corporate
purposes, including the backstop of commercial paper. None of such proceeds will
be used, directly or indirectly, for the purpose, whether immediate, incidental
or ultimate, of buying or carrying any Margin Stock.
Section 5.13. Transactions with Affiliates. The Company will not,
and will not permit any Subsidiary to, directly or indirectly, enter into any
material transaction, whether or not in the ordinary course of business, with
any Affiliate other than on terms and conditions at least as favorable to the
Company, or the affected Subsidiary, as those that would be obtained through an
arm's length negotiation with an unaffiliated third party.
ARTICLE 6
Defaults
Section 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of or
interest on any Loan or Letter of Credit Reimbursement Obligation, any fees or
any other amount payable hereunder, which failure, in the case of interest or
fees or amounts other than principal of any Loan or Letter of Credit
Reimbursement Obligation, continues for three Domestic Business Days;
(b) the Company shall fail to observe or perform any covenant
contained in Sections 5.07 to 5.13, inclusive;
(c) any Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause (a) or
(b) above) for 30 days after written notice thereof has been given to the
Company by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made
by any Borrower in this Agreement or in any certificate, financial statement or
other document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect when made (or deemed made);
(e) the Company or any Subsidiary shall fail to make any payment
in respect of any Material Debt when due or within any applicable grace period;
(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables (or with the giving
of notice or lapse of time or both, would enable) the holder of such Debt or any
Person acting on such holder's behalf to accelerate the maturity thereof;
41
(g) the Company or any Subsidiary shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall admit in writing its inability to, or fail
generally to, pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Company or any Subsidiary seeking liquidation, reorganization or
other relief with respect to it or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against the Company or any Subsidiary under the federal
bankruptcy laws as now or hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay to the PBGC or a Plan under Title IV of ERISA; or notice of
intent to terminate a Material Plan shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or a
default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one
or more Multiemployer Plans which could cause one or more members of the ERISA
Group to incur a current payment obligation in excess of $10,000,000;
(j) a judgment or order for the payment of money in excess of
$40,000,000 shall be rendered against the Company or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed for a period of 30
days;
(k) the Guarantee by the Company in Article 10 shall for any
reason be revoked or invalidated, or otherwise cease to be in full force and
effect, or the Company, or any Person on behalf of the Company, shall deny or
disaffirm its obligations under such Guarantee; or
(l) any person or group of persons (within the meaning of Section
13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC
under said Act) of 25% or more of the outstanding shares of common stock of the
Company; or individuals who, as of the Effective Date, constitute the board of
directors of the Company (the "Incumbent Directors") cease for any reason to
constitute at least a majority of the Company's board of directors, provided
that any person becoming a director after the Effective Date whose election, or
nomination for election by the Company's stockholders, is approved by a vote of
at least a majority of the directors then
42
comprising the Incumbent Directors (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election or removal of directors of
the Company) shall, for the purposes of this Agreement, be considered as though
such person were an Incumbent Director;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
to the Company terminate the Commitments and they shall thereupon terminate, and
(ii) if requested by Banks holding more than 50% in aggregate Dollar Amount of
the Loans, by notice to the Company declare the Loans (together with accrued
interest thereon) to be, and the Loans shall thereupon become, immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; provided that in the case of any
of the Events of Default specified in clause (g) or (h) above with respect to
the any Borrower, without any notice to the Company or any other act by the
Administrative Agent or the Banks, the Commitments shall thereupon terminate and
the Loans (together with accrued interest thereon) shall become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers.
Section 6.02. Notice of Default. The Administrative Agent shall
give notice to the Company under Section 6.01(c) promptly upon being requested
to do so by any Bank and shall thereupon notify all the Banks thereof.
Section 6.03. Cash Collateral. If an Event of Default shall have
occurred and be continuing and Banks having more than 50% of the Aggregate
Letter of Credit Exposure instruct the Administrative Agent to request cash
collateral pursuant to this Section, the Borrower will, promptly after it
receives such request from the Administrative Agent, pay to the Administrative
Agent an amount in immediately available funds equal to the then aggregate
amount available for subsequent drawings under all outstanding Letters of
Credit, to be held by the Administrative Agent, under arrangements satisfactory
to it, to secure the payment of all Letter of Credit Reimbursement Obligations
arising from subsequent drawings under such Letters of Credit; provided that, if
any Event of Default specified in clause (g) or (h) occurs with respect to the
Borrower, the Borrower shall pay such amount to the Administrative Agent
forthwith without any notice or demand or any other act by the Administrative
Agent or the Banks.
ARTICLE 7
The Agents
Section 7.01. Appointment and Authorization. Each Bank
irrevocably appoints and authorizes the Administrative Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto.
Section 7.02. Administrative Agent and Affiliates. The
Administrative Agent shall have the same rights and powers under this Agreement
as any other Bank and may exercise or refrain from exercising the same as though
it were not the Administrative Agent. The Administrative Agent and its
affiliates may accept deposits from, lend money to, and generally
43
engage in any kind of business with the Company or any Subsidiary or affiliate
of the Company as if it were not the Administrative Agent hereunder.
Section 7.03. Action by the Administrative Agent. The obligations
of the Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default, except as
expressly provided in Article 6.
Section 7.04. Consultation with Experts. The Administrative Agent
may consult with legal counsel (who may be counsel for any Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the advice of such counsel, accountants or experts.
Section 7.05. Liability of the Administrative Agent. The
Administrative Agent, its affiliates and its directors, officers, agents or
employees shall not be liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or willful misconduct. The
Administrative Agent, its affiliates and its directors, officers, agents or
employees shall not be responsible for or have any duty to ascertain, inquire
into or verify (i) any statement, warranty or representation made in connection
with this Agreement or any borrowing or issuance of Letter of Credit hereunder;
(ii) the performance or observance of any of the covenants or agreements of any
Borrower; (iii) the satisfaction of any condition specified in Article 3, except
receipt of items required to be delivered to it; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes or any other
instrument or writing furnished in connection herewith. The Administrative Agent
shall not incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
Section 7.06. Indemnification. Each Bank shall, ratably in
accordance with its Credit Exposure, indemnify the Administrative Agent and each
Issuing Bank, their respective affiliates and the respective directors,
officers, agents and employees of the foregoing (to the extent not reimbursed by
the Company) against any cost, expense (including counsel fees and
disbursements), claim, demand, action, loss or liability (except such as result
from such indemnitees' gross negligence or willful misconduct) that such
indemnitees may suffer or incur in connection with this Agreement or any action
taken or omitted by such indemnitees hereunder.
Section 7.07. Credit Decision. Each Bank acknowledges that it
has, independently and without reliance upon any Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon any Agent or
any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking any action under this Agreement.
Section 7.08. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving notice thereof to the Banks and the
Company. Upon any such
44
resignation, the Required Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent gives notice of
resignation, then the retiring Administrative Agent may, on behalf of the Banks,
appoint a successor Administrative Agent, which shall be a commercial bank
organized or licensed under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $50,000,000. Upon
the acceptance of its appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. After any retiring
Administrative Agent's resignation hereunder as Administrative Agent, the
provisions of this Article shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent.
Section 7.09. Administrative Agent's Fee. The Company shall pay
to the Administrative Agent for its own account fees in the amounts and at the
times previously agreed upon between the Company and the Administrative Agent.
Section 7.10. Other Agents. Neither the Documentation Agent nor
the Syndication Agent, in their capacities as such, shall have any duties or
obligations of any kind under this Agreement.
ARTICLE 9
Change in Circumstances
Section. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any Fixed
Rate Loans:
(a) the Administrative Agent is advised by the Euro-Currency
Reference Banks that deposits in the applicable currency and amounts are not
being offered to the Euro-Currency Reference Banks in the relevant market for
such Interest Period, or
(b) in the case of Euro-Currency Loans, Banks having 50% or more
of the aggregate amount of the Commitments advise the Administrative Agent that
the London Interbank Offered Rate as determined by the Administrative Agent will
not adequately and fairly reflect the cost to such Banks of funding such Loans
for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Company and
the Banks, whereupon until the Administrative Agent notifies the Company that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Euro-Currency Loans (in the affected currency)
or to convert outstanding Loans into Euro-Dollar Loans shall be suspended and
(ii) each outstanding Euro-Currency Loans shall be converted into a Base Rate
Loan on the last day of the then current Interest Period applicable thereto. In
the case of an Alternative Currency-Denominated Loan, such conversion shall be
made at the Administrative Agent's spot buying rate for Dollars against the
relevant Alternative Currency as of approximately 11:00 A.M. (London time) on
the date of such conversion. Unless the Company notifies the Administrative
Agent at least two Domestic Business Days before the date of any
45
Fixed Rate Borrowing for which a Notice of Borrowing has previously been given
that the relevant Borrower elects not to borrow on such date, (i) if such Fixed
Rate Borrowing is a Committed Borrowing, such Borrowing shall instead be made as
a Base Rate Borrowing in the same Dollar Amount as the requested Borrowing and
(ii) if such Fixed Rate Borrowing is a Competitive Bid LIBOR Borrowing, the
Competitive Bid LIBOR Loans comprising such Borrowing shall be made in Dollars
in the same aggregate Dollar Amount as the requested Borrowing and bear interest
for each day from and including the first day to but excluding the last day of
the Interest Period applicable thereto at the Base Rate for such day.
Section 8.02. Illegality. If, on or after Effective Date, the
adoption of any applicable law, rule or regulation, or any change in any
applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank (or its Euro-Currency Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall make it unlawful or impossible for any Bank (or its
Euro-Currency Lending Office) to make, maintain or fund its Euro-Currency Loans
to any Borrower and such Bank shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Banks and
the Company, whereupon until such Bank notifies the Company and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Currency Loans to such
Borrower, or to convert outstanding Loans to such Borrower into Euro-Dollar
Loans, shall be suspended. Before giving any notice to the Administrative Agent
pursuant to this Section, such Bank shall designate a different Euro-Currency
Lending Office if such designation will avoid the need for giving such notice
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. If such notice is given with respect to Euro-Dollar Loans, each
Euro-Dollar Loan of such Bank then outstanding shall be converted to a Base Rate
Loan either (a) on the last day of the then current Interest Period applicable
to such Euro-Dollar Loan if such Bank may lawfully continue to maintain and fund
such Euro-Dollar Loan to such day or (b) immediately if such Bank shall
determine that it may not lawfully continue to maintain and fund such
Euro-Dollar Loan to such day. If such notice is given with respect to
Alternative Currency Loans, the relevant Borrower shall prepay such Alternative
Currency Loans either (a) on the last day of the then current Interest Period
applicable to such Alternative Currency Loan if such Bank may lawfully continue
to maintain and fund such Alternative Currency Loan to such day or (b)
immediately if such Bank shall determine that it may not lawfully continue to
maintain and fund such Alternative Currency Loan to such day.
Section 8.03. Increased Cost and Reduced Return. (a) If on or
after (x) Effective Date, in the case of any Committed Loan or Letter of Credit
or any obligation to make Committed Loans or issue or participate in any Letter
of Credit or (y) the date of the related Competitive Bid Quote, in the case of
any Competitive Bid Loan, the adoption of any applicable law, rule or
regulation, or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency shall impose, modify or
deem applicable any reserve (including, without limitation, any such requirement
imposed by
46
the Board of Governors of the Federal Reserve System, but excluding with respect
to any Euro-Currency Loan any such requirement included in an applicable
Euro-Currency Reserve Percentage), special deposit, insurance assessment or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, any Bank (or its Applicable Lending Office) or shall impose
on any Bank (or its Applicable Lending Office) or on the United States market
for certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans or Letters of Credit Liabilities, any of its
Notes or its obligation to make Fixed Rate Loans or its obligations hereunder in
respect of Letters of Credit and the result of any of the foregoing is to
increase the cost to such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan or of issuing or participating in any Letter of
Credit, or to reduce the amount of any sum received or receivable by such Bank
(or its Applicable Lending Office) under this Agreement or under any of its
Notes with respect thereto, by an amount deemed by such Bank to be material,
then, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Company shall pay, or cause the relevant Borrower to
pay, to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost or reduction.
(b) If any Bank shall have determined that, after Effective Date,
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change in any such law, rule or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on capital of such Bank (or its Parent) as a consequence of such Bank's
obligations hereunder to a level below that which such Bank (or its Parent)
could have achieved but for such adoption, change, request or directive (taking
into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after
demand by such Bank (with a copy to the Administrative Agent), the Company shall
pay to such Bank such additional amount or amounts as will compensate such Bank
(or its Parent) for such reduction, provided that no such demand by any Bank
shall include any period commencing earlier than 90 days prior to the date of
demand.
(c) Each Bank will promptly notify the Company and the
Administrative Agent of any event of which it has knowledge, occurring after
Effective Date, which will entitle such Bank to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods.
(d) If at any time any Subsidiary that is incorporated in, or
conducts business in, a jurisdiction outside the United States becomes an
Eligible Subsidiary, all applicable laws, rules and regulations then in effect
in such jurisdiction shall be deemed for purposes of Section 8.03(a) to have
been adopted at such time and all applicable requests and directives theretofore
made by
47
any governmental authority, central bank or comparable agency in such
jurisdiction shall be deemed for purposes of Section 8.03(a) to have been made
at such time; provided that no Bank shall be obligated under Section 8.03(c) to
give notice of any such law, rule, regulation, request or directive, or to
designate a different Applicable Lending Office by reason thereof, until an
officer of such Bank responsible for administering this Agreement shall have
become aware of such law, rule, regulation, request or directive and the
relevant consequences thereof.
Section 8.04. Taxes. (a) Any and all payments by any Borrower or
the Guarantor to or for the account of any Bank or any Agent hereunder or under
any Note shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and Agent, taxes imposed on its net income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or Agent
(as the case may be) is organized or any political subdivision thereof and, in
the case of each Bank, taxes imposed on its income, and franchise or similar
taxes imposed on it, by the jurisdiction of such Bank's Applicable Lending
Office or any political subdivision thereof. In the case of each Bank or Agent,
all such non-excluded taxes, duties, levies, imposts, deductions, charges,
withholdings and liabilities are hereinafter referred to as its "Taxes", and all
such excluded taxes are hereinafter referred to as its "Domestic Taxes". If any
Borrower or the Guarantor shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note to any Bank or any
Agent, (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) such Bank or Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower or the Guarantor, as the case may be, shall make such
deductions, (iii) the Borrower or the Guarantor, as the case may be, shall pay
the full amount deducted to the relevant taxation authority or other authority
in accordance with applicable law and (iv) the Borrower or the Guarantor shall
furnish to the Administrative Agent, at its address in New York City referred to
in Section 11.01, the original or a certified copy of a receipt evidencing
payment thereof, and, if such receipt relates to Taxes in respect of a sum
payable to any Bank, the Administrative Agent shall promptly deliver such
original or certified copy to such Bank.
(b) In addition, each borrower and the Guarantor agrees to pay
any present or future stamp or documentary taxes and any other excise or
property taxes, or charges or similar levies which arise from any payment made
hereunder or under any Note or from the execution or delivery of, or otherwise
with respect to, this Agreement or any Note (hereinafter referred to as "Other
Taxes").
(c) Each Borrower and the Guarantor agrees to indemnify each Bank
and each Agents for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by such Bank or Agent (as the case may
be) and any liability (including penalties, interest and expenses to the extent
not attributable to the gross negligence or willful misconduct of such Bank or
Agent, as the case may be) arising therefrom or with respect thereto. In
addition, each Borrower and the Guarantor agrees to indemnify each Bank and
Agent for all Domestic Taxes of such Bank or Agent (calculated based on a
hypothetical basis at the maximum marginal rate for a corporation) and any
liability (including penalties, interest and expenses to the extent not
48
attributable to the gross negligence or willful misconduct of such Bank or
Agent, as the case may be) arising therefrom or with respect thereto, in each
case to the extent that such Domestic Taxes result from any payment or
indemnification pursuant to this Section for (i) Taxes or Other Taxes imposed by
any jurisdiction other than the United States or (ii) Domestic Taxes of such
Bank or Agent, as the case may be. This indemnification shall be made within 15
days from the date such Bank or Agent (as the case may be) makes demand
therefor.
(d) Each Bank 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 Bank listed on the signature pages hereof and on
or prior to the date on which it becomes a Bank in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company (but
only so long as such Bank remains lawfully able to do so), shall provide the
Company with Internal Revenue Service form W-8ECI or W-8BEN, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Bank is entitled to benefits under an income tax treaty to which the United
States is a party which reduces the rate of withholding tax on payments of
interest or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, any United States interest withholding tax at such rate
imposed on payments by the Company under this Agreement or under any Note (other
than pursuant to Article 10) shall be excluded from "Taxes" as defined in
Section 8.04(a).
(e) For any period with respect to which a Bank has failed to
provide the Company with the appropriate form pursuant to Section 8.04(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Bank shall not be entitled to indemnification under Section 8.04(a) or
Section 8.04(c) with respect to Taxes imposed by the United States; provided
that should a Bank, which is otherwise exempt from or subject to a reduced rate
of withholding tax, become subject to Taxes because of its failure to deliver a
form required hereunder, the Borrowers shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.
(f) If any Borrower or the Guarantor is required to pay
additional amounts to or for the account of any Bank pursuant to this Section,
then such Bank will change the jurisdiction of its Applicable Lending Office so
as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Bank, is not otherwise
disadvantageous to such Bank.
(g) Each Bank and Agent shall, at the request of the Company or
the Guarantor, use reasonable efforts (consistent with applicable legal and
regulatory restrictions) to file any certificate or document requested by the
Company if the making of such a filing would eliminate or reduce the amount of
any additional amounts payable to or for the account of such Bank or Agent (as
the case may be) pursuant to this Section in respect of any Taxes or Other Taxes
imposed by any jurisdiction other than the United States which may thereafter
accrue and would not, in the sole judgment of such Bank or Agent, require such
Bank or Agent to disclose any confidential or proprietary information or be
otherwise disadvantageous to such Bank or Agent.
49
(h) If any Borrower or the Guarantor makes any payment pursuant
to Section 8.04(a) or (c) with respect to a Bank, such Bank shall, upon the
reasonable request and at the reasonable expense of such Borrower or the
Guarantor, use reasonable efforts to apply for a refund of tax (if such tax is
not lawfully imposed) or a credit against its tax liabilities on account of such
payment; provided that (A) such Bank shall have no obligation under this Section
8.04(h) if it determines, in its sole discretion, that claiming a refund or a
credit would have adverse tax consequences to it and (B) such Bank shall not be
under any obligation to claim a credit or refund in respect of such payment in
priority to any other claims, reliefs, credits or deductions available to it. If
such Bank receives such a refund or actually reduces its tax liabilities by
utilizing such a credit, such Bank shall, to the extent that it can do so
without prejudice to the retention of the amount of such refund or credit, pay
to the relevant Borrower or the Guarantor an amount equal to the amount so
received or utilized (less any out-of-pocket expenses or taxes imposed on the
receipt of such refund or credit); provided that such Bank shall be required to
pay to such Borrower or the Guarantor (i) only such amounts as such Bank
determines, in its sole discretion and by using any reasonable method which the
Bank deems appropriate, are attributable to such payment by such Borrower or the
Guarantor, and (ii) only if no Event of Default exists at the time such Bank
receives the relevant refund or credit. If a Bank is in an excess foreign tax
credit position, such Bank shall be deemed not to have utilized a foreign tax
credit with respect to any such payment by the Borrower or the Guarantor. Each
Borrower and the Guarantor agrees to return, upon the request of a Bank, any
payment made by such Bank under this Section 8.04(h) (plus penalties, interest
and other charges imposed by a taxing authority) to such Bank if a taxing
authority or such Bank determines that (x) such Bank is required to repay such
refund or (y) such Bank is unable to utilize such credit. Any calculation or
determination made under this Section 8.04(h) by any Bank shall be conclusive
and final.
(i) Nothing contained in Section 8.04 shall (i) entitle any
Borrower or the Guarantor to any information determined by any Bank, in its sole
discretion, to be confidential or proprietary information of such Bank, to any
tax or financial information of any Bank or to inspect or review any books and
records of any Bank, (ii) require any Bank to disclose or detail the basis of
any calculation of the amount of any tax benefit or any other amount or the
basis of any determination made under Section 8.04(h) to any Borrower or any
other party, (iii) be construed to require any Bank to institute any
administrative proceeding (other than the filing of a claim for any refund or
credit) or judicial proceeding to obtain any such refund or credit, or (iv)
interfere with the rights of any Bank to conduct its fiscal or tax affairs
(including, without limitation, its determination as to whether to claim a
deduction or credit in respect of foreign taxes) in such manner as it deems fit.
Section 8.05. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make, or convert outstanding Loans
to, Euro-Dollar Loans to any Borrower has been suspended pursuant to Section
8.02 or (ii) any Bank has demanded compensation under Section 8.03 or 8.04 with
respect to its Euro-Currency Loans and the Company shall, by at least five
Euro-Currency Business Days' prior notice to such Bank through the
Administrative Agent, have elected that the provisions of this Section shall
apply to such Bank, then, unless and until such Bank notifies the Company that
the circumstances giving rise to such suspension or demand for compensation no
longer exist:
50
(a) all Loans which would otherwise be made by such Bank as (or
continued as or converted into) Euro-Dollar Loans shall instead be made as (or
continued as converted into) Base Rate Loans (on which interest and principal
shall be payable contemporaneously with the related Fixed Rate Loans of the
other Banks), and
(b) after each of its Euro-Currency Loans has been repaid (or
converted to a Base Rate Loan), all payments of principal which would otherwise
be applied to repay such Fixed Rate Loans shall be applied to repay its Base
Rate Loans instead.
If such Bank notifies the Company that the circumstances giving
rise to such notice no longer apply, the principal amount of each such Base Rate
Loan shall be converted into a Euro-Dollar Loan on the first day of the next
succeeding Interest Period applicable to the related Euro-Dollar Loans of the
other Banks.
Section 8.06. Substitution of Bank. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Bank has demanded compensation under Section 8.03 or 8.04, the Company
shall have the right, with the assistance of the Administrative Agent, to seek a
mutually satisfactory substitute bank or banks ("Substitute Banks") (which may
be one or more of the Banks) to purchase the Committed Loans and assume the
Commitment of such Bank (the "Exiting Bank"). The Exiting Bank shall, upon
reasonable notice and payment to it of the purchase price agreed between it and
the Substitute Bank or Banks (or, failing such agreement, a purchase price equal
to the outstanding principal amount of its Committed Loans and interest accrued
thereon to but excluding the date of payment), assign all of its rights and
obligations under this Agreement and the Notes (including its Commitment but
excluding its Competitive Bid Loans, if any, unless it otherwise agrees) to the
Substitute Bank or Banks, and the Substitute Bank or Banks shall assume such
rights and obligations, in accordance with Section 11.06(c). In connection with
any such sale, the Company shall compensate the Exiting Bank for any funding
losses as provided in Section 2.14 and pay to the Exiting Bank its facility fees
accrued to but excluding the date of such sale.
ARTICLE 9
Representations and Warranties of eligible subsidiaries
Each Eligible Subsidiary shall be deemed, by executing and
delivering its Election to Participate, to have represented and warranted as of
the date thereof that:
Section 9.01. Corporate Existence and Power. It is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and is a Wholly-Owned Subsidiary of the Company.
Section 9.02. Corporate and Governmental Authorization; No
Contravention. The execution and delivery by it of its Election to Participate
and its Notes, and the performance by it of this Agreement and its Notes, are
within its corporate powers, have been duly authorized by all necessary
corporate action, require no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of its charter
or by-laws or of any agreement, judgment, injunction, order, decree or other
instrument binding upon the Company or such
51
Eligible Subsidiary or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
Section 9.03. Binding Effect. This Agreement constitutes a valid
and binding agreement of such Eligible Subsidiary and its Notes, when executed
and delivered in accordance with this Agreement, will constitute valid and
binding obligations of such Eligible Subsidiary.
Section 9.04. Taxes. Except as disclosed in such Election to
Participate, there is no income, stamp or other tax of any country, or any
taxing authority thereof or therein, imposed by or in the nature of withholding
or otherwise, which is imposed on any payment to be made by such Eligible
Subsidiary pursuant to this Agreement or on its Notes, or is imposed on or by
virtue of the execution, delivery or enforcement of its Election to Participate
or its Notes.
ARTICLE 10
Guaranty
Section 10.01. The Guaranty. The Company hereby unconditionally
guarantees the full and punctual payment (whether at stated maturity, upon
acceleration or otherwise) of the principal of and interest on all Loans and
Letter of Credit Liabilities incurred by any Eligible Subsidiary pursuant to
this Agreement, and the full and punctual payment of all other amounts payable
by any Eligible Subsidiary under this Agreement. Upon failure by any Eligible
Subsidiary to pay punctually any such amount, the Company shall forthwith on
demand pay the amount not so paid at the place and in the manner and currency
specified in this Agreement.
Section 10.02. Guaranty Unconditional. The obligations of the
Company under this Article 10 shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any Eligible Subsidiary under this
Agreement or any of its Notes or Letters of Credit, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to this
Agreement or any Note or Letter of Credit of such Eligible Subsidiary (except
that the Company's guarantee under this Article 10 shall apply to the
obligations of such Eligible Subsidiary as modified, amended or supplemented
thereby);
(iii) any release, impairment, non-perfection or invalidity of
any direct or indirect security for any obligation of any Eligible Subsidiary
under this Agreement or any of its Notes or Letters of Credit;
(iv) any change in the corporate existence, structure or
ownership of any Eligible Subsidiary, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting any Eligible Subsidiary or
its assets or any resulting release or discharge of any obligation of any
Eligible Subsidiary contained in this Agreement or any of its Notes or Letters
of Credit;
52
(v) the existence of any claim, set-off or other rights which the
Company may have at any time against any Eligible Subsidiary, any Agent, any
Bank or any other Person, whether in connection herewith or with any unrelated
transactions, provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against
any Eligible Subsidiary for any reason of this Agreement or any of its Notes or
Letters of Credit, or any provision of applicable law or regulation purporting
to prohibit the payment by any Eligible Subsidiary of the principal of or
interest on any of its Loans or Letter of Credit Liabilities or any other amount
payable by it under this Agreement; or
(vii) any other act or omission to act or delay of any kind by
any Eligible Subsidiary, any Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of the Company's obligations
hereunder.
Section 10.03. Discharge Only upon Payment in Full; Reinstatement
in Certain Circumstances. The Company's obligations hereunder shall remain in
full force and effect until the Commitments shall have terminated and the
principal of and interest on the Loans or Letter of Credit Liabilities of the
Eligible Subsidiaries and all other amounts payable by the Company and each
Eligible Subsidiary under this Agreement shall have been paid in full. If at any
time any payment of the principal of or interest on any Loan or Letter of Credit
Liability of any Eligible Subsidiary or any other amount payable by any Eligible
Subsidiary under this Agreement is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of any Eligible
Subsidiary or otherwise, the Company's obligations hereunder with respect to
such payment shall be reinstated at such time as though such payment had been
due but not made at such time.
Section 10.04. Waiver by the Company. The Company irrevocably
waives acceptance hereof, presentment, demand, protest and any notice not
provided for herein, as well as any requirement that at any time any action be
taken by any Person against any Eligible Subsidiary or any other Person.
Section 10.05. Subrogation. Upon making any payment with respect
to the obligations of any Eligible Subsidiary hereunder, the Company shall be
subrogated to the rights of the payee against such Eligible Subsidiary with
respect to such payment; provided that the Company shall not enforce any payment
by way of subrogation against such Eligible Subsidiary so long as (i) any Bank
has any Commitment hereunder (unless such Eligible Subsidiary is no longer an
Eligible Subsidiary for purposes hereof) or (ii) any amount payable by such
Eligible Subsidiary hereunder remains unpaid.
Section 10.06. Stay of Acceleration. If acceleration of the time
for payment of any amount payable by any Eligible Subsidiary under this
Agreement or its Notes is stayed upon insolvency, bankruptcy or reorganization
of such Eligible Subsidiary, all such amounts otherwise subject to acceleration
under the terms of this Agreement shall nonetheless be payable by the Company
hereunder forthwith on demand by the Administrative Agent made at the request of
the Required Banks.
53
ARTICLE 11
Miscellaneous
Section 11.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party:
(v) in the case of the Company, at its address or facsimile
number set forth on the signature pages hereof;
(w) in the case of the Administrative Agent, (i) for any notice
with respect to Base Rate Loans:
Agent Bank Services
1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Tel: 000 000 0000
Fax: 000 000 0000
(ii) for any notice with respect to Euro-Dollar Loans or
Alternative Currency Loans:
JPMorgan Chase Bank
000 Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxx XX0X0XX, Xxxxxx Xxxxxxx
Attention: Xxxxx Xxxxxx
Tel: 000 00 000 000 0000
Fax: 000 00 000 000 0000
and (iii) for any other notices, at its address or telex or
facsimile number in New York City set forth on the signature pages hereof;
(x) in the case of an Eligible Subsidiary, at its address set
forth in its Election to Participate;
(y) in the case of any Bank, at its address or telex number set
forth in its Administrative Questionnaire or in the case of any party, such
other address or telex or facsimile number as such party may hereafter specify
for the purpose by notice to the Administrative Agent and the Company. Each such
notice, request or other communication shall be effective (i) if given by telex,
when such telex is transmitted to the telex number specified in this Section and
the appropriate answerback is received, (ii) if given by facsimile transmission,
when transmitted to the facsimile number referred to in this Section and
confirmation of receipt is received, (iii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid or (iv) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
Administrative Agent under Article 2 or Article 8 shall not be effective until
received; or
54
(z) in case of the Issuing Bank, unless and until such other
address or telex or facsimile number are specified:
JPMorgan Chase Bank
c/o JPMorgan Treasury Services
Global Trade Services
00000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
Tel: 000 000 0000
Fax: 000 000 0000 or 5162
Section 11.02. No Waivers. No failure or delay by any Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
or Letter of Credit shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 11.03. Expenses; Indemnification. The Company shall pay
(i) all reasonable out-of-pocket expenses of the Administrative Agent, including
reasonable fees and disbursements of special counsel for the Agents, in
connection with the preparation and administration of this Agreement, any waiver
or consent hereunder or any amendment hereof or any Default or alleged Default
hereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses
incurred by any Agent or any Bank, including fees and disbursements of counsel
(including, without limitation, the allocated costs of in-house counsel), in
connection with such Event of Default and collection, bankruptcy, insolvency and
other enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify each Agent and each Bank,
their respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel (including, without limitation, the reasonable
allocated costs of in-house counsel), which may be incurred by such Indemnitee
in connection with any investigative, administrative or judicial proceeding
(whether or not such Indemnitee shall be designated a party thereto) brought or
threatened relating to or arising out of this Agreement or any actual or
proposed use of proceeds of Loans or Letters of Credit hereunder; provided that
no Indemnitee shall have the right to be indemnified hereunder for such
Indemnitee's own gross negligence or willful misconduct as finally determined by
a court of competent jurisdiction.
Section 11.04. Sharing of Set-offs. (a) If an Event of Default
has occurred and is continuing and Banks holding more than 50% in aggregate
Dollar Amount of the Loans have requested the Administrative Agent to declare
the Loans to be immediately due and payable pursuant to Section 6.01, or the
Loans have become immediately due and payable without notice as provided in
Section 6.01, then each Bank and any of its affiliates are hereby authorized by
each Borrower at any time and from time to time, to the extent permitted by
applicable law, without notice to any Borrower (any such notice being expressly
waived by the Borrowers), to
55
set off and apply all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Bank
or any of its affiliates to or for the account of such Borrower against any
obligations of such Borrower to such Bank now or hereafter existing under this
Agreement, regardless of whether any such deposit or other obligation is then
due and payable or is in the same currency or is booked or otherwise payable at
the same office as the obligation against which it is set off and regardless of
whether such Bank shall have made any demand for payment under this Agreement.
Each Bank agrees promptly to notify such Borrower after any such set-off and
application made by such Bank or its affiliates; provided that any failure to
give such notice shall not affect the validity of such setoff and application.
The rights of the Banks under this subsection are in addition to any other
rights and remedies which the Banks may have.
(b) Each Bank agrees that if it shall, by exercising any right of
set-off or counterclaim or otherwise, receive payment of a proportion of the
aggregate amount of principal and interest due with respect to any Loan or
Letter of Credit Liability held by it which is greater than the proportion
received by any other Bank in respect of the aggregate amount of principal and
interest due with respect to any Loan or Letter of Credit Liability of the same
Borrower held by such other Bank, the Bank receiving such proportionately
greater payment shall purchase such participations in the Loans and Letter of
Credit Liabilities of the same Borrower held by the other Banks, and such other
adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans and Letter of Credit
Liabilities of the same Borrower held by the Banks shall be shared by the Banks
pro rata; provided that nothing in this Section shall impair the right of any
Bank to exercise any right of set-off or counterclaim it may have and to apply
the amount subject to such exercise to the payment of indebtedness of the
relevant Borrower other than its indebtedness under the Agreement. Each Borrower
agrees, to the fullest extent it may effectively do so under applicable law,
that any holder of a participation in any of its Loans or Letter of Credit
Liability, whether or not acquired pursuant to the foregoing arrangements, may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of such Borrower in the amount of such participation.
Section 11.05. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Company and the Required Banks
(and, if the rights or duties of any Issuing Bank or any Agent are affected
thereby, by the Administrative Agent); provided that no such amendment or waiver
shall, unless signed by all the Banks, (i) increase or decrease the Commitment
of any Bank (except for a ratable decrease in the Commitments of all the Banks)
or subject any Bank to any additional obligation, (ii) reduce the principal of
or rate of interest on any Loan or the amount to be reimbursed in respect of any
Letter of Credit or any interest thereon, or any fees hereunder, (iii) postpone
the date fixed for any payment of principal of or interest on any Loan or for
reimbursement in respect of any Letter of Credit or any fees hereunder or for
the termination of any Commitment, or (except as expressly provided in Section
2.18) the expiry date of any Letter of Credit, (iv) release the Guarantor from
any of its obligations under Article 10, (v) waive any of the conditions to
effectiveness set forth in Section 3.01 or (vi) change the percentage of the
Commitments or of the aggregate Dollar Amount of the Loans or Letter of Credit
Liabilities, or the number of Banks, which shall be required for the Banks or
any of them to take any action under this Section or any other provision of this
56
Agreement; and provided further that no such amendment, waiver or modification
shall, unless signed by an Eligible Subsidiary, (w) subject such Eligible
Subsidiary to any additional obligation, (x) increase the principal of or rate
of interest on any outstanding Loan or Letter of Credit Liability of such
Eligible Subsidiary, (y) accelerate the stated maturity of any outstanding Loan
of such Eligible Subsidiary or (z) change this proviso.
Section 11.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that no Borrower may assign
or otherwise transfer any of its rights under this Agreement without the prior
written consent of all the Banks.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans and/or Letter of Credit Liabilities. In the event of any
such grant by a Bank of a participating interest to a Participant, whether or
not upon notice to the Borrowers and the Administrative Agent, such Bank shall
remain responsible for the performance of its obligations hereunder, and the
Borrowers and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement. Any agreement pursuant to which any Bank may grant such a
participating interest shall provide that such Bank shall retain the sole right
and responsibility to enforce the obligations of the Borrowers hereunder
including, without limitation, the right to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement described in clause (i), (ii) or (iii) of
Section 11.05 without the consent of the Participant. The Borrowers agree that
each Participant shall, to the extent provided in its participation agreement,
be entitled to the benefits of Article 8 with respect to its participating
interest. An assignment or other transfer which is not permitted by subsection
(c) or (d) below shall be given effect for purposes of this Agreement only to
the extent of a participating interest granted in accordance with this
subsection (b).
(c) Any Bank may at any time assign to one or more banks or other
institution (each an "Assignee") all, or a proportionate part of all, of its
rights and obligations under this Agreement and its Notes (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Bank's Commitment and the Loans at the time owing to it or in the case
of an assignment to a Bank or an affiliate of a Bank or an Approved Fund with
respect to a Bank, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) subject to each such assignment
(determined as of the date the Assignment and Assumption Agreement, hereinafter
defined, with respect to such assignment is delivered to the Administrative
Agent) shall not be less than $5,000,000, unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consent (each such consent not to be unreasonably withheld or
delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank's rights and obligations under this
Agreement with respect to the Loan or the Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of outstanding Competitive Bid
Loans and (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an agreement, substantially in the form of Exhibit I hereto
(an
57
"Assignment and Assumption Agreement"), together with a processing and
recordation fee of $3,500, and the such Assignee, if it shall not be a Borrower,
shall deliver to the Administrative Agent an Administrative Questionnaire. From
and after the effective date specified in each Assumption Agreement, such
Assignee shall be a party hereto and, to the extent of the interest assigned by
such Assignment and Assumption Agreement, have the rights and obligations of a
Bank under this Agreement, and the assigning Bank thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption Agreement, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption Agreement covering all of the assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 8.03, 8.04 and
11.03). Any assignment or transfer by a Bank of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by such Bank of a participation in such rights and
obligations in accordance with paragraph (b) of this Section.
(d) Any Bank may at any time assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank or to any
affiliate of such transferor Bank. No such assignment shall release the
transferor Bank from its obligations hereunder and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such
transferor Bank in connection with such transferor Bank's rights and obligations
under this Agreement.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Company's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
Section 11.07. Collateral. Each of the Banks represents to each
Agent and each of the other Banks that it in good faith is not relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
Section 11.08. Governing Law; Submission to Jurisdiction. This
Agreement and each Note shall be governed by and construed in accordance with
the laws of the State of New York. Each Borrower hereby submits to the
nonexclusive jurisdiction of the United States District Court for the Southern
District of New York and of any New York State court sitting in New York City
for purposes of all legal proceedings arising out of or relating to this
Agreement or the transactions contemplated hereby. Each Borrower irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court has
been brought in an inconvenient forum.
Section 11.09. Counterparts; Integration. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the
58
entire agreement and understanding among the parties hereto and supersedes any
and all prior agreements and understandings, oral or written, relating to the
subject matter hereof.
Section 11.10. Waiver of Jury Trial. EACH OF THE BORROWERS, THE
AGENTS AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
59
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed as of the day and year first above written.
ALLERGAN, INC.
By:/s/ Xxxx X. Xxxxxx
Title: Corporate Vice President and
Chief Financial Officer
By:/s/ Xxxxx X. Xxxxxxx
Title: Senior Vice President, Treasury,
Risk and Investor Relations
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
0000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: General Counsel
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxxx
000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
60
JPMORGAN CHASE BANK,
individually and as Administrative
Agent
By:/s/ Xxxx Xxx Xxx
Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxx Xxx
Facsimile: (000) 000-0000
61
CITICORP USA, INC., individually
and as Syndication Agent
By:/s/ Xxxxxxx Xxxxxxx
Title: Vice President
62
BANK OF AMERICA, N.A.,
individually and as Documentation
Agent
By:/s/ Xxxxxx X Xxxxx
Title: Principal
63
BANK ONE, NA
By:/s/ Xxxxxx X. Xxxxxxxx
Title: Director
64
COMMITMENT SCHEDULE
BANK COMMITMENTS
JPMorgan Chase Bank $ 85,000,000
Citicorp USA, Inc. $ 85,000,000
Bank of America, N.A. $ 85,000,000
Bank One, NA $ 45,000,000
=============
Total $ 300,000,000
PRICING SCHEDULE
SENIOR UNSECURED CREDIT FACILITY
Each of "Facility Fee Rate" and "Euro-Currency Margin" means, for
any date, the rate set forth below in the row opposite such term and in the
column corresponding to the "Status" and "Utilization" that exist on such date:
FIVE YEAR FACILITY
STATUS LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI
-----------------------------------------------------------------------------------------------------------
Facility Fee Rate .0750% .0850% .1000% .1250% .1500% .2000%
-----------------------------------------------------------------------------------------------------------
Euro-Currency Margin
-----------------------------------------------------------------------------------------------------------
Utilization less than or equal to 50% .1250% .2150% .3000% .3750% .6000% .8000%
-----------------------------------------------------------------------------------------------------------
Utilization greater than 50% .2250% .3150% .4000% .5000% .7250% 1.0500%
For purposes of this Schedule, the following terms have the
following meanings, subject to the concluding paragraph of this Schedule:
"Level I Status" exists at any date if, at such date, the
Borrower's Credit Rating is A+ or higher by S&P or A1 or higher by Xxxxx'x.
"Level II Status" exists at any date if, at such date, (i) the
Borrower's Credit Rating is A or higher by S&P or A2 or higher by Xxxxx'x and
(ii) Level I Status does not exist.
"Level III Status" exists at any date if, at such date, (i) the
Borrower's Credit Rating is A- or higher by S&P or A3 or higher by Xxxxx'x and
(ii) neither Level I Status nor Level II Status exists.
"Level IV Status" exists at any date if, at such date, (i) the
Borrower's Credit Rating is BBB+ or higher by S&P or Baa1 or higher by Xxxxx'x
and (ii) none of Level I Status, Level II Status and Level III Status exists.
"Level V Status" exists at any date if, at such date, (i) the
Borrower's Credit Rating is BBB or higher by S&P or Baa2 or higher by Xxxxx'x
and (ii) none of Level I Status, Level II Status, Level III Status or Level IV
Status exists.
"Level VI Status" exists at any date if, at such date, no other
Status exists.
"Status" refers to the determination of which of Level I Status,
Level II Status, Level III Status, Level IV Status, Level V Status or Level VI
Status exists at any date.
"Utilization" means at any date the percentage equivalent of a
fraction (i) the numerator of which is the aggregate outstanding principal
amount of the Loans at such date, after giving effect to any borrowing or
payment on such date, and (ii) the denominator of which is the aggregate amount
of the Commitments at such date, after giving effect to any reduction of the
Commitments on such date. For purposes of this Schedule, if for any reason any
Loans remain outstanding after termination of the Commitments, the Utilization
for each date on or after the date of such termination shall be deemed to be
100%.
The Credit Ratings to be utilized for purposes of this Schedule
are those assigned to the senior unsecured long-term debt securities of the
Borrower without third-party credit enhancement, and any rating assigned to any
other debt security of the Borrower shall be disregarded. The rating in effect
at any date is that in effect at the close of business on such date. In the case
of split ratings from S&P's and Xxxxx'x, the rating to be used to determine
which Status applies is the higher of the two; provided that if the split is
more than one full category, one rating above the lower rating shall be used
(e.g. A+/A3 results in Level II Status and A+/Baa1 in Level III Status).
EXHIBIT A
NOTE
New York, New York
, 200_
For value received, Allergan, Inc., a Delaware corporation (the
"Borrower"), promises to pay to the order of _______________ (the "Bank"), for
the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date provided for in the Credit Agreement. The
Borrower promises to pay interest on the unpaid principal amount of each such
Loan on the dates and at the rate or rates and in the currency provided for in
the Credit Agreement. All such payments of principal and interest shall be made
(i) if in Dollars, in lawful money of the United States in Federal or other
immediately available funds at the office of JPMorgan Chase Bank, 270 Park
Avenue, New York, New York or (ii) if in an Alternative Currency, in such funds
as may then be customary for the settlement of international transactions in
such Alternative Currency at the place specified for payment thereof pursuant to
the Credit Agreement.
All Loans made by the Bank, the respective types and maturities
thereof, all repayments of the principal thereof and, in the case of
Euro-Currency Loans in an Alternative Currency, the currency thereof shall be
recorded by the Bank and, if the Bank so elects in connection with any transfer
or enforcement hereof, appropriate notations to evidence the foregoing
information with respect to each such Loan then outstanding shall be endorsed by
the Bank on the schedule attached hereto, or on a continuation of such schedule
attached to and made a part hereof; provided that the failure of the Bank to
make any such recordation or endorsement shall not affect the obligations of the
Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement dated
as of October __, 2002 among Allergan, Inc., the Eligible Subsidiaries referred
to therein, the banks party thereto, JPMorgan Chase Bank, as Administrative
Agent (as the same may be further amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof.
[The payment in full of the principal and interest on this Note has,
pursuant to the provisions of the Credit Agreement, been unconditionally
guaranteed by Allergan, Inc.]/1/
ALLERGAN, INC.
By:
--------------------------
Title:
--------------
/1/ Include in Notes of Eligible Subsidiaries only.
2
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
--------------------------------------------------------------------------------------------------
Type or Amount of
Date Currency Principal Amount of Maturity Notation
of Loan Repaid Loan Date Made by
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
3
EXHIBIT B
Form of Competitive Bid Quote Request
[Date]
To: JPMorgan Chase Bank (the "Administrative Agent")
From: Allergan, Inc.
Re: Credit Agreement (the "Credit Agreement") dated as of October __, 2002
among Allergan, Inc., the Eligible Subsidiaries referred to therein,
the Banks party thereto and the Administrative Agent
We hereby give notice pursuant to Section 2.03 of the Credit Agreement that
we request Competitive Bid Quotes for the following proposed Competitive Bid
Borrowing(s):
Date of Borrowing:
Principal Amount and Currency/1/ Interest Period/2/
$
Such Competitive Bid Quotes should offer a Competitive Bid [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate].
Terms used herein have the meanings assigned to them in the Credit
Agreement.
ALLERGAN, INC.
By
---------------------------
Title:
----------
/1/ Amount must be $5,000,000 or a larger multiple of $1,000,000 for each
Borrowing of Dollar-Determined Loans and at least $5,000,000 in Dollar Amount
for each Borrowing in an Alternative Currency.
/2/ Not less than one month (LIBOR Auction) or not less than 15 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
EXHIBIT C
Form of Invitation for Competitive Bid Quotes
To: [Name of Bank]
Re: Invitation for Competitive Bid Quotes to Allergan, Inc. (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of October _,
2002 among Allergan, Inc., the Eligible Subsidiaries referred to therein, the
Banks parties thereto and the undersigned, as Administrative Agent, we are
pleased on behalf of the Borrower to invite you to submit Competitive Bid Quotes
to the Borrower for the following proposed Competitive Bid Borrowing(s):
Date of Borrowing:
Principal Amount and Currency Interest Period
$
Such Competitive Bid Quotes should offer a Competitive Bid [Margin]
[Absolute Rate]. [The applicable base rate for Competitive Bid LIBOR Loan is the
London Interbank Offered Rate].
Please respond to this invitation by no later than [2:00 P.M.]
[9:15 A.M.] (New York City time) on [date].
JPMORGAN CHASE BANK
By
---------------------------------
Authorized Officer
EXHIBIT D
Form of Competitive Bid Quote
JPMORGAN CHASE BANK, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Competitive Bid Quote to
Allergan, Inc. (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_________________, 200_, we hereby make the following Competitive Bid Quote on
the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing:/1/
4. We hereby offer to make Competitive Bid Loan(s) in the following
principal amounts, in the following currency, for the following
Interest Periods and at the following rates:
-----------
/1/ As specified in the related Invitation.
Principal Amount Interest Competitive Bid
and Currency/2/ Period/3/ [Margin/4/] [Absolute Rate/5/]
[Provided that the aggregate principal
amount of Competitive Bid Loans for which
the above offers may be accepted shall not
exceed $ .]
We understand and agree that the offer(s) set forth above, subject to
the satisfaction of the applicable conditions set forth in the Credit Agreement
dated as of October _, 2002 among Allergan, Inc., the Eligible Subsidiaries
referred to therein, the Banks and yourselves, as Administrative Agent,
irrevocably obligates us to make the Competitive Bid Loan(s) for which any
offer(s) are accepted, in whole or in part.
Very truly yours,
[NAME OF BANK]
Dated: By:
--------------------------
Authorized Officer
--------------
2 Principal amount bid for each Interest Period may not exceed
principal amount requested. Specify aggregate limitation if the sum of the
individual offers exceeds the amount the Bank is willing to lend. Bids for
Dollar-Denominated Loans must be made for $5,000,000 or a larger multiple of
$1,000,000 and at least $5,000,000 for Alternative Currency-Denominated Loans.
3 Not less than one month or not less than 15 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
4 Margin over or under the London Interbank Offered Rate determined for
the applicable Interest Period. Specify percentage (to the nearest 1/10,000 of
1%) and specify whether "PLUS" or "MINUS".
5 Specify rate of interest per annum (to the nearest 1/10,000 of 1%).
2
EXHIBIT E
Opinion of General Counsel for the Company
October __, 2002
To the Banks and the Administrative
Agent referred to below
c/o JPMorgan Chase Bank,
as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Allergan, Inc.
Gentlemen:
This opinion is being furnished to you pursuant to Section 3.01(b) of
the Credit Agreement dated as of October __, 2002 among Allergan, Inc., a
Delaware corporation (the "Company"), the Eligible Subsidiaries and you (the
"Credit Agreement"). Capitalized terms used but not defined herein have the
corresponding meanings set forth in the Credit Agreement.
I am the General Counsel of the Company and, in such capacity, I am
generally familiar with the corporate and legal matters concerning the Company
and its Subsidiaries.
I have made such inquiries and examined, among other things, originals,
or copies certified or otherwise identified to my satisfaction as being true
copies, of such records, agreements, certificates, instruments and other
documents as I have considered necessary or appropriate for purposes of this
opinion.
Based on the foregoing and in reliance thereon, I am of the opinion
that:
1. The Company has been duly incorporated and is a validly existing
corporation and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to execute, deliver and perform its
obligations under the Credit Agreement and the Notes and to conduct its business
as presently conducted.
2. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the character of its business or the
location
of its properties makes such qualification necessary, except where the failure
to be so qualified would not have a Materially Adverse Effect.
3. To the best of my knowledge, the Company and each Subsidiary have
all governmental licenses, authorizations, consents and approvals required to
carry on their respective businesses as presently conducted, except where the
failure to have any of the foregoing would not in the aggregate have a
Materially Adverse Effect.
4. Neither the Company nor any Subsidiary is in violation of (a) its
charter or bylaws or (b) to the best of my knowledge, any law, statute, rule,
regulation, order, writ, injunction or decree of any Governmental Authority
applicable to them or their respective properties or assets, except, in the case
of clause (b), where any such violation would, singly or in the aggregate with
other such violations, not have a Materially Adverse Effect.
5. There are no pending or, to the best of my knowledge, threatened
actions or proceedings against the Company or any of its Subsidiaries before any
Governmental Authority which purport to affect the legality, validity, binding
effect or enforceability of the Credit Agreement or the Notes, or which are
likely to have a Materially Adverse Effect.
6. The execution and delivery by the Company of the Credit Agreement
and its Notes and the performance of its obligations thereunder have been duly
authorized by all necessary action of the Company.
7. The Credit Agreement and the Notes of the Company have each been
duly executed and delivered by the Company.
8. The Credit Agreement constitutes a valid and binding agreement of
the Company and each of its Notes constitute a legal, valid and binding
obligation of the Company, in each case enforceable in accordance with its
terms.
9. The execution, delivery and performance by the Company of the Credit
Agreement and its Notes do not and will not (A) violate the restated certificate
of incorporation or bylaws of the Company as in effect on the date hereof, (B)
to the best of my knowledge, violate any material law or regulation applicable
to the Company or any order, judgment or decree of any Governmental Authority
known to me to be binding on the Company, (C) to the best of my knowledge,
conflict
2
with, result in a material breach of or constitute a material default
under any material indenture, mortgage, deed of trust, agreement or other
instrument to which the Company or any Subsidiary is a party or by which any of
their respective properties are bound or result in or require the creation or
imposition of any Lien upon any of their respective assets, or (D) require any
authorization, consent, waiver or approval of any Governmental Authority.
10. Neither the Company nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The foregoing opinions are subject to the following exceptions,
qualifications and limitations:
A. I render no opinion herein as to matters involving the laws of any
jurisdiction other than (i) the Federal laws of the United States of America,
(ii) the laws of the State of California and (iii) the Delaware General
Corporation Law. I am not admitted to practice law in the State of Delaware;
however, I am generally familiar with the Delaware General Corporation Law as
presently in effect and have made such inquiries as I consider necessary to
render the opinions contained in paragraphs 1, 4, 6, 7 and 9. This opinion is
limited to the effect of the present state of the foregoing laws and to the
facts as they presently exist. I assume no obligation to revise or supplement
this opinion in the event of future changes in such laws or the interpretations
thereof or such facts. I call your attention to the fact that the Credit
Agreement provides that it and the Notes shall be construed in accordance with
and governed by the laws of the State of New York as to which I express no
opinion herein. However, in my opinion (i) a Federal or state court sitting in
California would enforce or otherwise give legal effect to the choice of New
York law set forth in Section 11.08 of the Credit Agreement and (ii) even if
such a court applied California law to determine the rights of the parties under
the Credit Agreement, I would give the opinion set forth in paragraph 8 above.
B. My opinions set forth in paragraph 8 and (with respect to
performance by the Company) clauses (B) and (D) of paragraph 9 are subject to
(i) the effect of any bankruptcy, insolvency, reorganization, moratorium,
arrangement or similar laws affecting the enforcement of creditors' rights
generally (including, without limitation, the effect of statutory or other laws
regarding fraudulent transfers or
3
preferential transfers) and (ii) general principles of equity, regardless of
whether enforceability is considered in a proceeding in equity or at law.
C. Without limitation, I express no opinion (i) as to the ability to
obtain specific performance, injunctive relief or other equitable relief
(whether sought in a proceeding at law or in equity) as a remedy for
noncompliance with Credit Agreement or the Notes, and (ii) regarding the rights
or remedies available to any party insofar as such party may take discretionary
action that is arbitrary, unreasonable or capricious, or is not taken in good
faith or in a commercially reasonable manner, whether or not such action is
permitted under the Credit Agreement or the Notes.
D. I express no opinion with respect to the legality, validity, binding
nature or enforceability of any provision of the Credit Agreement or the Notes
to the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to any other right or
remedy, that the election of some particular remedy does not preclude recourse
to one or more others or that failure to exercise or delay in exercising rights
or remedies will not operate as a waiver of any such right or remedy.
E. I express no opinion with respect to the legality, validity, binding
nature or enforceability of (i) any waiver under the Credit Agreement or the
Notes or any consents thereunder relating to the rights of the Company or duties
owing to it existing as a matter of law, except to the extent the Company may so
waive or consent under applicable law, (ii) provisions in the Credit Agreement
or the Notes imposing an increase in interest rate upon delinquency in payment
or (iii) any rights of setoff.
F. I express no opinion as to any provision of the Credit Agreement or
the Notes requiring written amendments or waivers of such documents insofar as
it suggests that oral or other modifications, amendments or waivers could not be
effectively agreed upon by the parties or that the doctrine of promissory
estoppel might not apply.
G. I express no opinion as to the applicability or effect of any Bank's
compliance with any state or Federal laws applicable to the transactions
contemplated by the Credit Agreement.
4
This opinion is rendered to you in connection with the Credit Agreement
and may not be relied upon by any person other than you (or permitted assignees
under the Credit Agreement) or by you (or any such permitted assignee) in any
other context, provided that you may provide this opinion (i) to bank examiners
and other regulatory authorities should they so request or in connection with
their normal examinations, (ii) to your independent auditors and attorneys,
(iii) pursuant to order or legal process of any court or governmental agency, or
(iv) in connection with any legal action to which you are a party arising out of
the transactions contemplated by the Credit Agreement. This opinion may not be
quoted without my prior written consent. I consent to the delivery of this
opinion to the Administrative Agent's special counsel, Xxxxx Xxxx & Xxxxxxxx,
and to their reliance on this opinion in connection with closing under the
Credit Agreement.
Very truly yours,
Xxxxxxx X. Xxxxxx, Xx., Esq.
General Counsel
Allergan, Inc.
0
XXXXXXX X
XXXXXXX XX
XXXXX XXXX & XXXXXXXX, SPECIAL COUNSEL
TO THE ADMINISTRATIVE AGENT
October __, 2002
To the Banks and the Administrative Agent
Referred to Below
c/o JPMorgan Chase Bank, as Administrative Agent
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of October __, 2002 among Allergan, Inc., a
Delaware corporation (the "Company"), the Eligible Subsidiaries referred to
therein, the banks party thereto (the "Banks"), JPMorgan Chase Bank, as
Administrative Agent (the "Administrative Agent"), and have acted as special
counsel to the Administrative Agent for the purpose of rendering this opinion
pursuant to Section 3.01(c) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such documents, corporate records, certificates of
public officials and other instruments and have conducted such other
investigations of fact and law as we have deemed necessary or advisable for
purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Company of the Credit
Agreement and its Notes are within the Company's corporate powers and have been
duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Company and each Note of the Company constitutes a valid and binding
1
obligation of the Company, in each case enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization or other
similar laws affecting creditors' rights generally and general principles of
equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of the
United States and the General Corporation Law of the State of Delaware. In
giving the foregoing opinion, we express no opinion as to the effect (if any) of
any law of any jurisdiction (except the State of New York) in which any Bank is
located which limits the rate of interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent.
Very truly yours,
2
EXHIBIT G
ELECTION TO PARTICIPATE
___________, 20__
JPMORGAN CHASE BANK, as Administrative Agent for
the Banks party to the Credit
Agreement dated as of October __, 2002
among Allergan, Inc., the Eligible
Subsidiaries referred to therein,
such Banks and such Administrative Agent (the
"Credit Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement have for the purposes
hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, hereby elects to be an Eligible Subsidiary for
purposes of the Credit Agreement, effective from the date hereof until an
Election to Terminate shall have been delivered on behalf of the undersigned in
accordance with the Credit Agreement. The undersigned confirms that the
representations and warranties set forth in Article 9 of the Credit Agreement
are true and correct as to the undersigned as of the date hereof, and the
undersigned agrees to perform all the obligations of an Eligible Subsidiary
under, and to be bound in all respects by the terms of, the Credit Agreement,
including without limitation Section 11.08 thereof, as if the undersigned were a
signatory party thereto.
[Tax disclosure pursuant to Section 8.04.]
The address to which all notices to the undersigned under the Credit
Agreement should be directed is:
This instrument shall be construed in accordance with and governed by
the laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By:
-----------------------------
Title:
The undersigned confirms that [name of Eligible Subsidiary] is an
Eligible Subsidiary for purposes of the Credit Agreement described above.
ALLERGAN, INC.
By:
-----------------------------
Name:
Title:
Receipt of the above Election to Participate is acknowledged on and as
of the date set forth above.
JPMORGAN CHASE BANK,
as Administrative Agent
By:
-----------------------------
Name:
Title:
2
EXHIBIT H
ELECTION TO TERMINATE
___________, 20__
JPMORGAN CHASE BANK, as Administrative Agent for
the Banks party to the Credit
Agreement dated as of
October __, 2002 among Allergan, Inc.,
the Eligible Subsidiaries
referred to therein, such Banks
and such Administrative Agent (the "Credit
Agreement")
Dear Sirs:
Reference is made to the Credit Agreement described above. Terms not
defined herein which are defined in the Credit Agreement have for the purposes
hereof the meaning provided therein.
The undersigned, [name of Eligible Subsidiary], a [jurisdiction of
incorporation] corporation, elects to terminate its status as an Eligible
Subsidiary for purposes of the Credit Agreement, effective as of the date
hereof. The undersigned represents and warrants that all principal and interest
on all Notes of the undersigned and all other amounts payable by the undersigned
pursuant to the Credit Agreement have been paid in full on or prior to the date
hereof. Notwithstanding the foregoing, this Election to Terminate shall not
affect any obligation of the undersigned under the Credit Agreement or under any
of its Notes heretofore incurred.
This instrument shall be construed in accordance with and governed by
the laws of the State of New York.
Very truly yours,
[NAME OF ELIGIBLE SUBSIDIARY]
By:
-----------------------------
Title:
The undersigned confirms that the status of [name of Eligible
Subsidiary] as an Eligible Subsidiary for purposes of the Credit Agreement
described above is terminated as of the date hereof.
ALLERGAN, INC.
By:
-----------------------------
Name:
Title:
Receipt of the above Election to Terminate is acknowledged on and as of
the date set forth above.
JPMORGAN CHASE BANK,
as Administrative Agent
By:
-----------------------------
Name:
Title:
2
EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 200_ among [ASSIGNOR] (the
"Assignor"), [ASSIGNEE] (the "Assignee"), ALLERGAN, INC., a Delaware corporation
(the "Company"), and JPMORGAN CHASE BANK, as Administrative Agent (the
"Administrative Agent").
W I T N E S S E T H
-------------------
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Credit Agreement dated as of October __, 2002 among the Company,
the Eligible Subsidiaries party thereto, the Assignor and the other banks party
thereto, as Banks, and the Administrative Agent (the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Loans to the Borrowers in an aggregate Dollar Amount at any
time outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrowers by the Assignor under
the Credit Agreement in the aggregate Dollar Amount of $__________ are
outstanding at the date hereof;
WHEREAS, Letters of Credit with a total amount available for drawing
thereunder of $___________ are outstanding at the date hereof; and
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans and a
corresponding portion of its share of the Aggregate Letter of Credit Exposure,
and the Assignee proposes to accept assignment of such rights and assume the
corresponding obligations from the Assignor on such terms;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
1
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
from the Assignor and assumes all of the obligations of the Assignor under the
Credit Agreement to the extent of the Assigned Amount, including the
corresponding potion of each of its outstanding Committed Loans and the
corresponding portion of its share of each component of the Aggregate Letter of
Credit Exposure. Upon the execution and delivery hereof by the Assignor and the
Assignee [and the execution of the consent attached hereto by the Company and
the Administrative Agent] and the payment of the amounts specified in Section 3
required to be paid on the date hereof, (i) the Assignee shall, as of the date
hereof, succeed to the rights and be obligated to perform the obligations of a
Bank under the Credit Agreement with a Commitment in an amount equal to the
Assigned Amount, and (ii) the Commitment of the Assignor shall, as of the date
hereof, be reduced by a like amount and the Assignor shall be released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The assignment provided for herein shall be without
recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on the
date hereof, in Dollars (in Federal funds) and the relevant Alternative
Currencies, the amounts heretofore agreed between them./1/ It is understood that
facility fees and letter of commitment fees accrued to the date hereof are for
the account of the Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the Assignor and the
Assignee agrees that if it receives any amount under the Credit Agreement which
is for the account of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other party's interest therein
and shall promptly pay the same to such other party.
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/1/ Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee. It may be preferable
in an appropriate case to specify these amounts generically or by formula rather
than as a fixed sum.
2
[SECTION 4. Consent of the Company and the Administrative Agent. This
Agreement is conditioned upon the consent of the Company and the Administrative
Agent pursuant to Section 11.06(c) of the Credit Agreement.]**
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition or statements of any
Borrower, or the validity and enforceability of the obligations of any Borrower
in respect of the Credit Agreement or its Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrowers.
SECTION 6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 7. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
--------------
/2/ Delete if consent is not required.
3
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By:
-------------------------
Title:
The undersigned consent to the foregoing assignment.
[ASSIGNEE]
By:
-------------------------
[ALLERGAN, INC.]
By:
-------------------------
[JPMORGAN CHASE BANK]
By:
-------------------------
4
