CONFORMED COPY
FACILITY A
364-DAY
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COMPETITIVE ADVANCE, REVOLVING CREDIT
AND GUARANTY AGREEMENT
dated as of
October 23, 1997
among
DENTSPLY INTERNATIONAL INC., as Borrower,
THE GUARANTORS NAMED HEREIN,
THE BANKS NAMED HEREIN,
THE CHASE MANHATTAN BANK, as Administrative Agent,
and
ABN AMRO BANK N.V., as Documentation Agent
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81
TABLE OF CONTENTS
Page
----
INTRODUCTORY STATEMENT
ARTICLE I
Definitions. . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
Loans
-----
SECTION 2.01. Commitments . . . . . . . . . . . . . . 19
SECTION 2.02. Loans . . . . . . . . . . . . . . . . . 19
SECTION 2.03. Use of Proceeds . . . . . . . . . . . . 21
SECTION 2.04. Competitive Bid Procedure . . . . . . . 21
SECTION 2.05. Revolving Credit Borrowing
Procedure. . . . . . . . . . . . . 24
SECTION 2.06. Refinancings. . . . . . . . . . . . . . 25
SECTION 2.07. Fees. . . . . . . . . . . . . . . . . . 26
SECTION 2.08. Notes; Repayment of Loans . . . . . . . 27
SECTION 2.09. Interest on Loans . . . . . . . . . . . 28
SECTION 2.10. Interest on Overdue Amounts . . . . . . 29
SECTION 2.11. Alternate Rate of Interest. . . . . . . 29
SECTION 2.12. Termination, Reduction, Increase and
Extension of Commitments . . . . . 30
SECTION 2.13. Prepayment of Loans . . . . . . . . . . 33
SECTION 2.14. Eurodollar Reserve Costs. . . . . . . . 34
SECTION 2.15. Reserve Requirements; Change
in Circumstances . . . . . . . . . 34
SECTION 2.16. Change in Legality. . . . . . . . . . . 36
SECTION 2.17. Indemnity . . . . . . . . . . . . . . . 37
SECTION 2.18. Pro Rata Treatment. . . . . . . . . . . 38
SECTION 2.19. Right of Setoff . . . . . . . . . . . . 39
SECTION 2.20. Sharing of Setoffs. . . . . . . . . . . 39
SECTION 2.21. Payments. . . . . . . . . . . . . . . . 40
SECTION 2.22. United States Withholding . . . . . . . 40
SECTION 2.23. Participations; Assignments . . . . . . 42
ARTICLE III
Representations and Warranties
------------------------------
SECTION 3.01. Organization; Corporate Powers. . . . . 47
SECTION 3.02. Authorization . . . . . . . . . . . . . 47
SECTION 3.03. Enforceability. . . . . . . . . . . . . 48
SECTION 3.04. Governmental Approvals. . . . . . . . . 48
SECTION 3.05. Financial Statements and Condition. . . 48
SECTION 3.06. No Material Adverse Change. . . . . . . 50
82
SECTION 3.07. Title to Properties . . . . . . . . . . 50
SECTION 3.08. Litigation. . . . . . . . . . . . . . . 50
SECTION 3.09. Tax Returns . . . . . . . . . . . . . . 51
SECTION 3.10. Agreements. . . . . . . . . . . . . . . 51
SECTION 3.11. Employee Benefit Plans. . . . . . . . . 52
SECTION 3.12. Investment Company Act; Public
Utility Holding Company Act;
Federal Power Act. . . . . . . . . 53
SECTION 3.13. Federal Reserve Regulations . . . . . . 53
SECTION 3.14. Defaults; Compliance with Laws. . . . . 53
SECTION 3.15. Use of Proceeds . . . . . . . . . . . . 54
SECTION 3.16. Affiliated Companies. . . . . . . . . . 54
SECTION 3.17. Environmental Liabilities . . . . . . . 54
SECTION 3.18. Disclosure. . . . . . . . . . . . . . . 55
SECTION 3.19. Insurance . . . . . . . . . . . . . . . 56
ARTICLE IV
Conditions of Lending
---------------------
SECTION 4.01. All Borrowings. . . . . . . . . . . . . 56
SECTION 4.02. Closing Date. . . . . . . . . . . . . . 57
ARTICLE V
Affirmative Covenants
---------------------
SECTION 5.01. Corporate Existence . . . . . . . . . . 59
SECTION 5.02. Maintenance of Property . . . . . . . . 60
SECTION 5.03. Insurance . . . . . . . . . . . . . . . 60
SECTION 5.04. Obligations and Taxes . . . . . . . . . 60
SECTION 5.05. Financial Statements; Reports, etc. . . 61
SECTION 5.06. Defaults and Other Notices. . . . . . . 63
SECTION 5.07. ERISA . . . . . . . . . . . . . . . . . 63
SECTION 5.08. Access to Premises and Records. . . . . 64
SECTION 5.09. Compliance with Laws, etc.. . . . . . . 64
SECTION 5.10. Security Interests. . . . . . . . . . . 65
SECTION 5.11. Subsidiary Guarantors . . . . . . . . . 65
SECTION 5.12. Environmental Laws. . . . . . . . . . . 65
SECTION 5.13. Existing Credit Agreements. . . . . . . 66
ARTICLE VI
Negative Covenants
------------------
SECTION 6.01. Liens . . . . . . . . . . . . . . . . . 67
SECTION 6.02. Indebtedness. . . . . . . . . . . . . . 69
SECTION 6.03. Mergers, Consolidations, Sales
of Assets and Acquisitions . . . . 69
SECTION 6.04. Change of Business. . . . . . . . . . . 70
83
SECTION 6.05. Transactions with Affiliates. . . . . . 71
SECTION 6.06. Sale and Leaseback. . . . . . . . . . . 71
SECTION 6.07. Dividends by Subsidiaries . . . . . . . 72
SECTION 6.08. Amendments to Certain Documents . . . . 72
SECTION 6.09. Minimum Consolidated Net Worth. . . . . 72
SECTION 6.10. Interest Coverage . . . . . . . . . . . 72
SECTION 6.11. Debt Ratio. . . . . . . . . . . . . . . 72
SECTION 6.12. Fiscal Year . . . . . . . . . . . . . . 72
ARTICLE VII
Events of Default
-----------------
ARTICLE VIII
Guarantee
---------
SECTION 8.01. Guarantee . . . . . . . . . . . . . . . 77
SECTION 8.02. No Impairment of Guaranty . . . . . . . 78
SECTION 8.03. Continuation and
Reinstatement, etc.. . . . . . . . 78
SECTION 8.04. Payment, etc. . . . . . . . . . . . . . 78
SECTION 8.05. Benefit to Guarantors . . . . . . . . . 79
ARTICLE IX
Administrative Agent
--------------------
SECTION 9.01. Appointment of Administrative
Agent. . . . . . . . . . . . . . . 79
SECTION 9.02. Exculpation . . . . . . . . . . . . . . 80
SECTION 9.03. Consultation with Counsel . . . . . . . 80
SECTION 9.04. The Administrative Agent,
Individually . . . . . . . . . . . 81
SECTION 9.05. Reimbursement and Indemnification . . . 81
SECTION 9.06. Resignation . . . . . . . . . . . . . . 81
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Notices. . . . . . . . . . . . . . . . 82
SECTION 10.02. No Waivers; Amendments . . . . . . . . 82
SECTION 10.03. Applicable Law; Submission
to Jurisdiction; Service
of Process; Waiver of
Jury Trial . . . . . . . . . . . . 83
SECTION 10.04. Expenses; Documentary Taxes. . . . . . 84
SECTION 10.05. Indemnity. . . . . . . . . . . . . . . 85
84
SECTION 10.06. Successors and Assigns . . . . . . . . 85
SECTION 10.07. Survival of Agreements,
Representations and
Warranties, etc. . . . . . . . . . 86
SECTION 10.08. Severability . . . . . . . . . . . . . 86
SECTION 10.09. Cover Page and Section Headings. . . . 86
SECTION 10.10. Counterparts . . . . . . . . . . . . . 86
SECTION 10.11. Confidentiality. . . . . . . . . . . . 86
85
Contents, p. 5
Exhibits
--------
A-1 Form of Competitive Bid Request
A-2 Form of Notice of Competitive Bid Request
A-3 Form of Competitive Bid
A-4 Form of Competitive Bid Accept/Reject Letter
A-5 Form of Revolving Credit Borrowing Request
B-1 Form of Competitive Note
B-2 Form of Revolving Credit Note
C Form of Contribution Agreement
D-1 Form of Opinion of Xxxxxx, Xxxxx & Xxxxxxx
D-2 Form of Opinion of J. Xxxxxxx Xxxxx, Esq.
E Form of Assignment and Acceptance
Schedules
---------
1.01 Guarantors
2.01 Commitments
2.02 Scheduled Loans
3.16 Affiliates
3.17 Environmental Liabilities
4.02 Consents
6.01 Liens
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364-DAY COMPETITIVE ADVANCE, REVOLVING
CREDIT AND GUARANTY AGREEMENT dated as of
October 23, 1997, among DENTSPLY
INTERNATIONAL INC., a Delaware corporation
(the "Borrower"), the Guarantors named
herein, the Banks named herein (individually
a "Bank" and collectively the "Banks"), and
THE CHASE MANHATTAN BANK, as Administrative
Agent for the Banks (the "Administrative
Agent"), and ABN AMRO BANK N.V., as
Documentation Agent for the Banks (the
"Documentation Agent").
INTRODUCTORY STATEMENT
All terms not otherwise defined herein are as defined in Article
I hereof.
The Borrower has requested that the Banks extend credit to the
Borrower in order to enable the Borrower to borrow on a standby revolving
credit basis a principal amount not in excess of $125,000,000 at any time
outstanding.
The Borrower has also requested that the Banks provide a
procedure pursuant to which the Borrower may invite the Banks to bid on an
uncommitted basis on short-term borrowings by the Borrower.
The proceeds of all such borrowings are to be used (a) to
refinance outstanding Indebtedness of the Borrower under the Borrower's
Existing Credit Agreements and (b) for general working capital and
corporate purposes, including acquisitions in the health care products
industry.
To provide assurance for the repayment of the Loans and all
related interest, fees, charges, expenses, reimbursement obligations and
other amounts payable with respect thereto, the Guarantors will guarantee
the Obligations pursuant to Article VIII hereof.
Accordingly, the Borrower, the Guarantors, the Banks and the
Administrative Agent agree as follows:
ARTICLE I
Definitions
-----------
As used in this Agreement, the following words and terms shall
have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Revolving Credit Loan bearing interest
87
at a rate determined by reference to the Alternate Base Rate in accordance
with the provisions of Article II.
"Administrative Agent" shall mean The Chase Manhattan Bank, in
its capacity as agent for the Banks hereunder and not in its individual
capacity as a Bank, or such successor Administrative Agent as may be
appointed pursuant to Section 9.06.
"Affiliate" shall mean, with respect to the person in question,
(a) any person (including any member of the immediate family of any such
natural person) which (i) directly or indirectly beneficially owns or
controls 10% or more of the total voting power of shares of capital stock
having the right to vote for directors under ordinary circumstances (if
such person is a corporation), (ii) is a general partner (if such person is
a partnership) or (iii) is otherwise empowered, by contract, voting trust
or otherwise, to direct the business or affairs of such person, (b) any
person controlling, controlled by or under common control with any such
person (within the meaning of Rule 405 under the Securities Act of 1933),
and (c) any director, general partner or executive officer of any such
person.
"Agreement" shall mean the $125,000,000, 364-Day Competitive
Advance, Revolving Credit and Guaranty Agreement dated as of October 23,
1997, among DENTSPLY International Inc., as Borrower, the Guarantors named
therein, the Banks named therein, The Chase Manhattan Bank, as
Administrative Agent, and ABN Amro Bank N.V., as Documentation Agent, as
the same may be amended, modified or supplemented from time to time.
"Alternate Base Rate" shall mean for any day, a rate per annum
(rounded upwards, if not already a whole multiple of 1/16 of 1%, to the
next higher 1/16 of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect for such day plus 1/2 of 1%.
For purposes hereof, the term "Prime Rate" shall mean the rate per annum
announced by The Chase Manhattan Bank from time to time as its prime rate
in effect at its principal office in The City of New York; each change in
the Prime Rate shall be effective on the date such change is announced as
effective. "Base CD Rate" shall mean the sum of (x) the product of (i) the
Average Weekly Three-Month Secondary CD Rate and (ii) Statutory Reserves
plus (y) the Assessment Rate. "Average Weekly Three-Month Secondary CD
Rate" shall mean the secondary market rate ("Secondary CD Rate") for
three-month certificates of deposit (secondary market) of major United
States money market banks for the most recent weekly period ending Friday
reported in the Federal Reserve Statistical release entitled "Weekly
Summary of Lending and Credit Measures (Averages of daily figures)" or any
successor publication released during the week for which the Secondary CD
Rate is being determined. The Secondary CD Rate so reported shall be in
effect, for the purpose of this definition, for each day of the week during
which the release date of such publication occurs. If such publication or
a substitute containing the foregoing rate information is not published by
the Federal Reserve Board for any week, such average rate shall be
determined by the Administrative Agent on the first Business Day of the
week succeeding such week for which such rate information is not published
88
on the basis of bids quoted to the Administrative Agent by three New York
City negotiable certificate of deposit dealers of recognized standing for
secondary market morning offerings of negotiable certificates of deposit of
major United States money market banks with maturities of three months.
Any change in the Alternate Base Rate due to a change in the Average Weekly
Three-Month Secondary CD Rate shall be effective on the effective date of
such change in the Average Weekly Three-Month Secondary CD Rate. "Federal
Funds Effective Rate" shall mean, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published on the succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business
Day, the average of the quotations for the day of such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it. Any change in the Alternate Base Rate
due to a change in the Federal Funds Effective Rate shall be effective on
the effective date of such change in the Federal Funds Effective Rate. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable
to ascertain both the Base CD Rate and the Federal Funds Effective Rate for
any reason, including the inability or failure of the Administrative Agent
to obtain sufficient bids or publications in accordance with the terms
hereof, the Alternate Base Rate shall be the Prime Rate until the
circumstances giving rise to such inability no longer exist.
"Applicable Commitment Percentage" means, with respect to any
Bank, the percentage of the total Commitments represented by such Bank's
Commitment. If the Commitments have terminated or expired, the Applicable
Commitment Percentages shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments.
"Applicable Percentage" shall mean .1700% per annum.
"Assessment Rate" shall mean for any date the annual rate
(rounded upwards, if not already a whole multiple of 1/100 of 1%, to the
next higher 1/100 of 1%) most recently estimated by the Administrative
Agent as the then current net annual assessment rate that will be employed
in determining amounts payable by the Administrative Agent to the Federal
Deposit Insurance Corporation ("FDIC") (or any successor) for insurance by
the FDIC (or such successor) of time deposits made in dollars at its
domestic offices.
"Assignment and Acceptance" shall mean an agreement in the form
of Exhibit E hereto entered into pursuant to Section 2.23, executed by the
assignor, assignee and other parties as contemplated thereby.
"Bank" and "Banks" shall mean the financial institutions listed
on Schedule 2.01 and any assignee of a Bank pursuant to Section 2.23(b) or
(c).
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States.
89
"Borrowing" shall mean a group of Loans of a single Interest Rate
Type made by the Banks (or in the case of a Competitive Borrowing, by the
Bank or Banks whose Competitive Bids have been accepted pursuant to Section
2.04) on a single date and as to which a single Interest Period is in
effect.
"Business Day" shall mean any day not a Saturday, Sunday or legal
holiday in the State of New York or the Commonwealth of Pennsylvania on
which banks and the Federal Reserve Bank of New York are open for business
in New York City; provided, however, that when used in connection with a
LIBOR Loan the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capitalized Lease Obligations" shall mean any obligation of a
Person as lessee of any property (real, personal or mixed), which, in
accordance with generally accepted accounting principles, is or should be
accounted for as a capital lease on the balance sheet of such Person.
"Closing Date" shall mean the date of the first Borrowing under
the Facility B Credit Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as the same
shall be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the
commitment of such Bank hereunder as initially set forth on Schedule 2.01
as such Bank's Commitment may be permanently terminated, reduced, increased
or extended from time to time pursuant to Section 2.12. Subject to Section
2.12, the Commitments shall automatically and permanently terminate on the
Termination Date.
"Competitive Bid" shall mean an offer by a Bank to make a
Competitive Loan pursuant to Section 2.04.
"Competitive Bid Accept/Reject Letter" shall mean a notification
made by the Borrower pursuant to Section 2.04(d) in the form of Exhibit
A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid made
by a Bank pursuant to Section 2.04(b), (a) in the case of a LIBOR Loan, the
Margin and (b) in the case of a Fixed Rate Loan, the fixed rate of interest
offered by the Bank making such Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant to
Section 2.04 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Bank or Banks
whose Competitive Bids for such Borrowing have been accepted by the
Borrower under the bidding procedure described in Section 2.04.
"Competitive Loan" shall mean a Loan from a Bank to the Borrower
90
pursuant to the bidding procedure described in Section 2.04. Each
Competitive Loan shall be a LIBOR Competitive Loan or a Fixed Rate Loan.
"Competitive Note" shall mean a promissory note of the Borrower
in the form of Exhibit B-1 executed and delivered as provided in Section
2.08.
"Consolidated" shall mean, as applied to any financial or
accounting term, such term determined on a consolidated basis in accordance
with generally accepted accounting principles (except as otherwise required
herein) for the Borrower and each Subsidiary which is a Consolidated
Subsidiary of the Borrower.
"Consolidated EBITDA" shall mean for any period "Income from
operations" as set forth in the DENTSPLY International Inc. Consolidated
Statements of Income, plus depreciation and amortization (to the extent
previously deducted), determined in accordance with generally accepted
accounting principles and in a manner consistent with the accounting
principles used to prepare the audited DENTSPLY International Inc.
Consolidated Statements of Income for the year ended December 31, 1996, and
delivered to the Administrative Agent; provided that there shall be
excluded:
(a) the income (or loss) from operations of any
person, accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the
person whose income is being determined or a subsidiary
of such person; and
(b) the income (or loss) from operations of any
person (other than a Subsidiary) in which the person
whose operating income is being determined or any
subsidiary of such person has an ownership interest,
except to the extent that any such income has actually
been received by such person in the form of cash
dividends or similar distributions.
"Consolidated Interest Coverage Ratio" shall mean, in respect of
any fiscal period of the Borrower, (a) Consolidated EBITDA divided by (b)
Consolidated Interest Expense.
"Consolidated Interest Expense" shall mean, for any fiscal period
of the Borrower, without duplication of expense among fiscal periods (a)
the aggregate amount determined on a Consolidated basis of (i) all interest
on Indebtedness of the Borrower and its Consolidated Subsidiaries accrued
during such period, (ii) all rentals imputed as interest accrued under
Capitalized Lease Obligations during such period by such person and (iii)
all amortization of discount and expense relating to Indebtedness of the
Borrower and its Consolidated Subsidiaries which amortization was accounted
for during such period, (b) adjusted downward for capital gains and upward
for capital losses on maturing U.S. Treasury obligations and (c) adjusted
downward for interest income (to the extent not previously excluded), as
determined in accordance with generally accepted accounting principles.
91
"Consolidated Net Income" shall mean the net income (or net loss)
of the Borrower and its Consolidated Subsidiaries for the period in
question (taken as a whole), as determined in accordance with generally
accepted accounting principles; provided that there shall be excluded:
(a) the net income (or net loss) of any person,
accrued prior to the date it becomes a Subsidiary or is
merged into or consolidated with the person whose net
income is being determined or a subsidiary of such
person; and
(b) the net income (or net loss) of any person
(other than a Subsidiary) in which the person whose net
income is being determined or any subsidiary of such
person has an ownership interest, except to the extent
that any such income has actually been received by such
person in the form of cash dividends or similar
distributions.
"Consolidated Net Worth" shall mean, as at any date of
determination, the sum of the capital stock (less treasury stock) and
additional paid-in capital plus retained earnings (or minus accumulated
deficit) of the Borrower and its Consolidated Subsidiaries on a
Consolidated basis.
"Consolidated Subsidiary" means, in the case of the Borrower at
any date, any Subsidiary or other entity the accounts of which are
Consolidated with those of the Borrower in the Consolidated financial
statements of the Borrower as of such date.
"Consolidated Total Capitalization" shall mean the sum of (a)
Consolidated Total Indebtedness and (b) Consolidated Net Worth.
"Consolidated Total Indebtedness" shall mean the Consolidated
Indebtedness of the Borrower and its Consolidated Subsidiaries.
"Contribution Agreement" shall mean a Contribution Agreement
among the Borrower and the Guarantors substantially in the form of Exhibit
C hereto.
"Debt Ratio" shall mean the ratio of Consolidated Total
Indebtedness to Consolidated Total Capitalization.
"Default" shall mean an Event of Default or any event, act or
condition which with notice or lapse of time, or both, would constitute an
Event of Default.
"Des Plaines Lease" shall mean the Amended and Restated Sale and
Leaseback Agreement, dated as of August 1, 1991 between XxXxxxxxx Partners
I as Buyer and Midwest Dental Products Corporation, as Seller.
"dollars" and the symbol "$" shall mean the lawful currency of
the United States of America.
92
"Effective Date" shall mean the date on which the conditions to
borrowing set forth in Sections 4.01 and 4.02 are first satisfied.
"Environmental Laws" shall mean all statutes, ordinances, orders,
rules and regulations relating to environmental matters, including those
relating to fines, orders, injunctions, penalties, damages, contribution,
cost recovery compensation, losses or injuries resulting from the release
or threatened release of Hazardous Materials and to the generation, use,
storage, transportation, or disposal of Hazardous Materials or in any
manner applicable to the Borrower or any of the Subsidiaries or any of
their respective properties, including the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. ss. 9601 et seq.), the
Hazardous Material Transportation Act (49 U.S.C. ss. 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Clean
Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15
U.S.C. ss. 2601 et seq.), the Occupational Safety and Health Act (29 U.S.C. ss.
651 et seq.) and the Emergency Planning and Community Right-to-Know Act (42
U.S.C. ss. 11001 et seq.), each as amended or supplemented, and any analogous
current or future Federal, state or local statutes and regulations
promulgated pursuant thereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may from time to time be amended.
"ERISA Affiliate" shall mean with respect to the Borrower, any
trade or business (whether or not incorporated) which is a member of a
group of which the Borrower is a member and which is under common control
within the meaning of Section 414 of the Code.
"ESOP" shall mean the DENTSPLY Employee Stock Ownership Plan
effective as of December 1, 1982 and restated as of January 1, 1991.
"Event of Default" shall mean any of the events described in
clauses (a) through (m) of Article VII.
"Execution Date" shall mean the date of this Agreement.
"Existing Credit Agreements" shall mean the Existing Revolving
Credit Agreement and the Existing Term Loan Agreement.
"Existing Revolving Credit Agreement" shall mean the $175,000,000
Competitive Advance, Revolving Credit and Guaranty Agreement dated as of
November 15, 1993, as amended, among the Borrower, the guarantors and banks
party thereto and The Chase Manhattan Bank, as Agent.
"Existing Term Loan Agreement" shall mean the $60,000,000
Multicurrency Term Loan Agreement dated as of May 12, 1995 among the
Borrower, the banks party hereto and ABN Amro Bank N.V., as Agent.
"Facility B Credit Agreement" shall mean the $175,000,000, 5-Year
Competitive Advance, Revolving Credit and Guaranty Agreement dated as of
the date hereof among the Borrower, the guarantors, the banks party
93
thereto, ABN Amro Bank N.V. as documentation agent and The Chase Manhattan
Bank as administrative agent, as amended, modified or supplemented from
time to time.
"Facility Fee" shall have the meaning given such term in Section
2.07 hereof.
"Facility Fee Percentage" shall mean .0800% per annum.
"Financial Officer" of any person shall mean its Senior Vice
President-Chief Financial Officer, Treasurer or Controller.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of Fixed
Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of a
decimal to no more than four decimal places) specified by the Bank making
such Loan in its Competitive Bid.
"Fundamental Documents" shall mean this Agreement, the
Contribution Agreement, the Competitive Notes and the Revolving Credit
Notes.
"Governmental Authority" shall mean any Federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, or any court, in each case whether of the United States or
foreign.
"Guarantors" shall mean all Material Subsidiaries which are
incorporated in the United States, all of which are listed on Schedule
1.01, and any other Subsidiaries of the Borrower which become Guarantors
pursuant to Section 5.11.
"Guaranty", "Guaranteed" or to "Guarantee" as applied to any
obligation shall mean and include (a) a guaranty (other than by endorsement
of negotiable instruments for collection in the ordinary course of
business), directly or indirectly, in a manner, of any part (to the extent
of such part) or all of such obligation and (b) an agreement, direct or
indirect, contingent or otherwise, and whether or not constituting a
guaranty, the intention or practical effect of which is to assure the
payment or performance (or payment of damages or compensation in the event
of nonperformance) of any part (to the extent of such part) or all of such
obligation whether by (i) the purchase of securities or obligations, (ii)
the purchase, sale or lease (as lessee or lessor) of property or the
purchase or sale of services primarily for the purpose of enabling the
obligor with respect to such obligation to make any payment or performance
(or payment of damages or compensation in the event of nonperformance) of
or on account of any part or all of such obligation, or to assure the owner
of such obligation against loss, (iii) the supplying of funds to or in any
other manner investing in the obligor or any other person with respect to
or on account of such obligation, (iv) repayment of amounts drawn down by
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beneficiaries of letters of credit or arising out of the import of goods or
(v) the indemnifying or holding harmless, in any way, of a person against
any part (to the extent of such part) or all of such person's obligation
under a Guaranty except for hold harmless agreements with vendors with
respect to product liability and warranties to customers.
"Hazardous Materials" shall mean any hazardous substances or
wastes as such terms are defined in any applicable Environmental Law,
including (a) oil, petroleum and any by-product thereof and (b) asbestos
and asbestos-containing material.
"Indebtedness" shall mean, with respect to any person (a) all
obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or other similar instruments,
(c) all obligations of such person upon which interest charges are
customarily paid, except for debt obligations related to foreign accounts
receivable sold to certain banks, (d) all obligations of such person for
the deferred purchase price of property or services (except (i) accounts
payable to suppliers incurred in the ordinary course of business and paid
within one year, (ii) non-interest-bearing notes payable to suppliers
incurred in the ordinary course of business and having a maturity date not
later than one year after the date of issuance thereof, and (iii) payroll
and other accruals arising in the ordinary course of business), (e) all
obligations of such person under conditional sale or other title retention
agreements relating to property purchased by such person, (f) all
Capitalized Lease Obligations, including obligations arising from sale and
leaseback transactions which are required to be accounted for as
Capitalized Lease Obligations, (g) all Indebtedness of any third party
which is secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) property or
assets of the person in question (the amount of such Indebtedness taken
into account for the purposes of this clause (g) not to exceed the book
value of such property or assets), (h) all Guarantees of such person, and
(i) all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements, or other interest or
exchange rate hedging transactions (the amount of such Indebtedness for
purposes of this clause (i) to be the termination value of such agreement
or arrangement); provided, however, that there shall be excluded from this
definition (x) Indebtedness between the Borrower and any Subsidiary and (y)
Indebtedness between Subsidiaries; provided further, however, that any
Indebtedness owed to a Subsidiary remaining outstanding after that
Subsidiary ceases to be a Subsidiary shall be included as Indebtedness
hereunder.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable thereto and, in the case of a
LIBOR Loan with an Interest Period of more than three months' duration or a
Fixed Rate Loan with an Interest Period of more than 90 days' duration,
each day that would have been an Interest Payment Date had successive
Interest Periods of three months' duration or 90 days' duration, as the
case may be, been applicable to such Loan, and, in addition, the date of
any refinancing or conversion of such Loan with or to a Loan of a different
Interest Rate Type.
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"Interest Period" shall mean (a) as to any LIBOR Borrowing, the
period commencing on the date of such Borrowing or on the last day of the
immediately preceding Interest Period applicable to such Borrowing, as the
case may be, and ending on the numerically corresponding day (or, if there
is no numerically corresponding day, on the last day) in the calendar month
that is 1, 2, 3 or 6 months thereafter, as the Borrower may elect, (b) as
to any ABR Borrowing, the period commencing on the date of such Borrowing
and ending on the earliest of (i) the next succeeding March 31, June 30,
September 30 or December 31, (ii) the Maturity Date and (iii) the date such
Borrowing is refinanced with a Borrowing of a different Interest Rate Type
in accordance with Section 2.06 or prepaid in accordance with Section 2.13
and (c) as to any Fixed Rate Borrowing, the period commencing on the date
of such Borrowing and ending on the date specified in the Competitive Bids
in which the offer to make the Fixed Rate Loans comprising such Borrowing
were extended, which shall not be earlier than 7 days after the date of
such Borrowing or later than 360 days after the date of such Borrowing;
provided, however, that if any Interest Period would end on a day other
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of LIBOR Loans only, such next
succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
"Interest Rate Type", when used in respect of any Loan or
Borrowing, shall refer to the Rate by reference to which interest on such
Loan or on the Loans comprising such Borrowing is determined. For purposes
hereof, "Rate" shall mean LIBOR, the Alternate Base Rate or the Fixed Rate,
as applicable.
"LIBOR" shall mean, with respect to any LIBOR Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16th of 1%) equal to the rate at which dollar deposits
approximately equal in principal amount to (a) in the case of a Revolving
Credit Borrowing, the Administrative Agent's portion of such LIBOR
Borrowing and (b) in the case of a Competitive Borrowing, a principal
amount that would have been the Administrative Agent's portion of such
Competitive Borrowing had such Competitive Borrowing been a Revolving
Credit Borrowing, and for a maturity comparable to such Interest Period are
offered to the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised of LIBOR
Loans.
"LIBOR Competitive Loan" shall mean any Competitive Loan bearing
interest at a rate determined by reference to LIBOR in accordance with the
provisions of Article II.
"LIBOR Loan" shall mean any LIBOR Competitive Loan or LIBOR
Revolving Credit Loan.
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"LIBOR Revolving Credit Loan" shall mean any Revolving Credit
Loan bearing interest at a rate determined by reference to LIBOR in
accordance with the provisions of Article II.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including any
conditional sale or other title retention agreement, any lease in the
nature thereof, and the filing or agreement to give any financing statement
under the Uniform Commercial Code of any jurisdiction other than a
financing statement filed or given as a precautionary measure in respect of
a lease which is not required to be accounted for as a Capitalized Lease
Obligation and which does not otherwise secure an obligation that
constitutes Indebtedness).
"Loan" shall mean a Competitive Loan or a Revolving Credit Loan,
whether made as a LIBOR Loan, an ABR Loan or a Fixed Rate Loan, as
permitted hereby.
"Margin" shall mean, as to any LIBOR Competitive Loan, the margin
(expressed as a percentage rate per annum in the form of a decimal to four
decimal places) to be added to or subtracted from LIBOR in order to
determine the interest rate applicable to such Loan, as specified in the
Competitive Bid relating to such Loan.
"Material Subsidiary" shall mean any Subsidiary (i) the
consolidated net income of which for the most recent fiscal year of the
Borrower for which audited financial statements have been delivered
pursuant to Section 5.05 were greater than or equal to 5% of Consolidated
Net Income for such fiscal year, (ii) the consolidated tangible assets of
which as of the last day of the Borrower's most recently ended fiscal year
were greater than or equal to 5% of the Borrower's consolidated tangible
assets as of such date or (iii) the net worth of which as of the last day
of the Borrower's most recently ended fiscal year was greater than or equal
to 5% of Consolidated Net Worth as of such date; provided that, if at any
time the aggregate amount of the consolidated net income, consolidated
tangible assets or consolidated net worth of all Subsidiaries incorporated
in the United States that are not Material Subsidiaries exceeds 15% of
consolidated net income for any such fiscal year, 15% of the Borrower's
consolidated tangible assets as of the end of any such fiscal year or 15%
of Consolidated Net Worth for any such fiscal year, the Borrower (or, in
the event the Borrower has failed to do so within 10 days, the
Administrative Agent) shall designate as "Material Subsidiaries"
Subsidiaries incorporated in the United States sufficient to eliminate such
excess, and such designated Subsidiaries incorporated in the United States
shall for all purposes of this Agreement constitute Material Subsidiaries.
"Maturity Date" shall mean the date that is one year after the
Termination Date.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate
of the Borrower is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
97
obligation to make contributions.
"Notes" shall mean the Competitive Notes and the Revolving Credit
Notes.
"Obligations" shall mean the obligation of the Borrower to make
due and punctual payment of principal of and interest on the Loans, the
Facility Fee and all other monetary obligations of the Borrower to the
Administrative Agent or any Bank under this Agreement, the Notes or the
Fundamental Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA.
"person" or "Person" shall mean any natural person, corporation,
trust, association, company, partnership, joint venture or government, or
any agency or political subdivision thereof.
"Plan" shall mean any employee plan (other than a Multiemployer
Plan) which is subject to the provisions of Title IV of ERISA and which is
maintained for employees of the Borrower or any ERISA Affiliate of the
Borrower.
"Pro Forma Basis" shall mean, in connection with an acquisition
or disposition by or merger involving the Borrower or any Subsidiary, a
computation of compliance with the requirements of this Agreement for the
immediately preceding four full fiscal quarters or other relevant period
assuming that such acquisition, disposition or merger had occurred at the
beginning of such period. Such computation shall take into account the
relevant financial information with respect to the acquired, disposed of,
or merged entity for such period and shall assume that any Indebtedness
incurred in connection with such acquisition, disposition or merger had
been incurred at the beginning of such period; provided, however, in order
to avoid double-counting, it is acknowledged that if the Borrower or any
Subsidiary incurs Indebtedness in connection with such a transaction and
repays Indebtedness of the acquired, disposed of or merged entity, the
Indebtedness so repaid shall not be included as Indebtedness of such entity
for such period.
"Reduction Date" shall have the meaning given in Section 2.12(c)
hereof.
"Register" shall be as defined in Section 2.23(e).
"Regulation D" shall mean Regulation D of the Board, as the same
is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board, as the same
is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation T" shall mean Regulation T of the Board, as the same
98
is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as the same
is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as the same
is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(c) of ERISA or the regulations issued thereunder.
"Required Banks" shall mean at any time Banks holding (i) at
least 51% of the Commitments and (ii) at least 51% of the principal amount
of Loans then outstanding; provided that in order to terminate the
Commitments or declare the Notes to be forthwith due and payable pursuant
to Article VII hereof, "Required Banks" shall mean Banks holding at least
51% of the aggregate principal amount then outstanding of Loans.
"Revolving Credit Borrowing" shall mean a Borrowing consisting of
simultaneous Revolving Credit Loans from each of the Banks.
"Revolving Credit Borrowing Request" shall mean a request made
pursuant to Section 2.05 in the form of Exhibit A-5.
"Revolving Credit Loans" shall mean the revolving loans made by
the Banks to the Borrower pursuant to Section 2.05. Each Revolving Credit
Loan shall be a LIBOR Revolving Credit Loan or an ABR Loan.
"Revolving Credit Note" shall mean a promissory note of the
Borrower in the form of Exhibit B-2, executed and delivered as provided in
Section 2.08.
"Senior Officer" shall mean the Chairman, Vice Chairman,
President and Senior Vice Presidents of the Borrower.
"Statutory Reserves" shall mean (a) with respect to the Base CD
Rate (as such term is used in the definition of "Alternate Base Rate"), a
fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate rates
expressed as a decimal of (A) basic and supplemental reserve requirements
in effect on the date of effectiveness of the Average Weekly Three-Month
Secondary CD Rate (as such term is defined in the definition of "Alternate
Base Rate") under Regulation D of the Board applicable to three-month
certificates of deposit in units of $100,000 or more issued by a "member
bank" located in a "reserve city" (as such terms are used in Regulation D),
plus (B) marginal reserve requirements in effect on such date of
effectiveness under Regulation D applicable to time deposits of a "member
bank" and (b) with respect to LIBOR, shall mean a fraction (expressed as a
decimal) the numerator of which is the number one and the denominator of
which is one minus the aggregate of the maximum reserve requirements
99
(including any marginal, special, emergency or supplemental reserves)
established by the Board or any other banking authority to which a Bank is
subject for Eurocurrency Liabilities (as defined in Regulation D). Such
reserve percentages shall include those imposed under Regulation D. LIBOR
Loans shall be deemed to constitute Eurocurrency Liabilities and as such
shall be deemed to be subject to such reserve requirements without benefit
of or credit for proration, exceptions or offsets which may be available
from time to time to any Bank under Regulation D. Statutory Reserves shall
be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"subsidiary" shall mean, with respect to any person, any
corporation, association or other business entity of which more than 50% of
the securities or other ownership interests having ordinary voting power
is, at the time of which any determination is being made, owned or
controlled by such person or one or more subsidiaries of such person.
"Subsidiary" shall mean a subsidiary of the Borrower.
"Termination Date" shall mean October 22, 1998 or such other
Termination Date then in effect pursuant to Section 2.12(e).
"Term-Out Applicable Percentage" shall mean on any date, with
respect to (a) the Facility Fee or (b) any Loans comprising any LIBOR
Revolving Credit Borrowing, the applicable percentage set forth in the
table below based upon the Consolidated Interest Coverage Ratio of the
Borrower for the four fiscal quarters immediately preceding such date
treated as a single accounting period (determined in accordance with
Section 2.09(e)):
FACILITY FEE/LIBOR BORROWING APPLICABLE PERCENTAGE TABLE
If the Applicable Applicable Applicable
Consolidated Interest Percentage Percentage
Coverage Ratio is: Facility Fee LIBOR Borrowing
------------------------------------------------------------
Greater than or
equal to 12.0:1.0 .1000% .1500%
Less than 12.0:1.0
but greater than
or equal to 7.5:1.0 .1250% .1750%
Less than 7.5:1.0
but greater than
or equal to 5.5:1.0 .1500% .2500%
Less than 5.5:1.0
but greater than
or equal to 4.0:1.0 .1750% .3250%
Less than 4.0:1.0 .2000% .4250%
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"Total Commitment" shall mean the aggregate amount of the Banks'
Commitments, as in effect at such time.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of
Title IV of ERISA.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting principles and
practices consistent in all material respects (except for changes with
which the Borrower's independent auditors concur) with those applied in the
preparation of the financial statements referred to in Section 3.05(a) (and
references herein to generally accepted accounting principles shall mean
generally accepted accounting principles as so applied) and all financial
data submitted pursuant to this Agreement shall be prepared in accordance
with such principles and practices, except as otherwise expressed herein.
The definitions in this Article I shall apply equally to both the singular
and plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" as used in this
Agreement and any Exhibit or Schedule hereto shall be deemed in each case
to be followed by the phrase "without limitation".
ARTICLE II
Loans
-----
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions hereof and relying upon the representations and warranties
herein set forth, each Bank agrees, severally and not jointly, to make
Revolving Credit Loans to the Borrower, at any time and from time to time
on and after the Effective Date and until the earlier of the Termination
Date or the termination of the Commitment of such Bank, in an aggregate
principal amount at any time outstanding not to exceed such Bank's
Commitment minus (i) the amount by which the Competitive Loans outstanding
at such time shall be deemed to have used such Commitment pursuant to
Section 2.18, and (ii) the amount which is the product of (y) the aggregate
principal amounts due under any loans outstanding under the Existing Credit
Agreements and listed on Schedule 2.02 (the "Scheduled Loans") and (z) such
Bank's Applicable Commitment Percentage, subject, however, to the
conditions that (a) at no time shall (i) the sum of (A) the outstanding
aggregate principal amount of all Revolving Credit Loans made by all Banks
plus (B) the outstanding aggregate principal amount of all Competitive
Loans made by all Banks exceed (ii) the Total Commitment and (b) at all
times (except as expressly contemplated by the last sentence of Section
2.12(d)) the outstanding aggregate principal amount of all Revolving Credit
Loans made by each Bank shall equal the product of (i) such Bank's
Applicable Commitment Percentage and (ii) the outstanding aggregate
principal amount of all Revolving Credit Loans made pursuant to Section
2.05.
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(b) Within the foregoing limits, the Borrower may borrow, pay or
repay and reborrow hereunder, on and after the Effective Date and prior to
the Termination Date, upon the terms and subject to the conditions and
limitations set forth herein.
SECTION 2.02. Loans. (a) Each Revolving Credit Loan shall be
made as part of a Borrowing consisting of Loans made by the Banks ratably
in accordance with their Commitments; provided, however, that the failure
of any Bank to make any Revolving Credit Loan shall not in itself relieve
any other Bank of its obligation to lend hereunder (it being understood,
however, that no Bank shall be responsible for the failure of any other
Bank to make any Loan required to be made by such other Bank). Each
Competitive Loan shall be made in accordance with the procedures set forth
in Section 2.04. The Revolving Credit Loans or Competitive Loans
comprising any Borrowing shall be (i) in the case of Competitive Loans, in
an aggregate principal amount that is an integral multiple of $1,000,000
and not less than $5,000,000 and (ii) in the case of Revolving Credit
Loans, in an aggregate principal amount that is an integral multiple of
$1,000,000 and, in the case of LIBOR Loans, not less than $5,000,000 (or an
aggregate principal amount equal to the remaining balance of the available
Commitments).
(b) Each Competitive Borrowing shall be comprised entirely of
LIBOR Competitive Loans or Fixed Rate Loans, and each Revolving Credit
Borrowing shall be comprised entirely of LIBOR Revolving Credit Loans, or
ABR Loans, as the Borrower may request pursuant to Section 2.04 or 2.05, as
applicable. Each Bank may at its option make any LIBOR Loan by causing any
domestic or foreign branch or Affiliate of such Bank to make such Loan;
provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement and the applicable Note. Borrowings of more than one Interest
Rate Type may be outstanding at the same time; provided, however, that the
Borrower shall not be entitled to request any Borrowing that, if made,
would result in an aggregate of more than 12 separate Revolving Credit
Loans of any one Bank being outstanding hereunder at any one time. For
purposes of the calculation required by the immediately preceding sentence,
LIBOR Revolving Credit Loans having different Interest Periods, regardless
of whether they commence on the same date, shall be considered separate
Loans and all Loans of a single Interest Rate Type made on a single date
shall be considered a single Loan if such Loans have a common Interest
Period.
(c) Subject to Section 2.06, each Bank shall make each Loan to
be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New
York, not later than 12:00 noon, New York City time, and the Administrative
Agent shall by 3:00 p.m., New York City time, credit the amounts so
received to the general deposit account of the Borrower with the
Administrative Agent or, if a Borrowing shall not occur on such date
because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Banks as soon as
practicable. Competitive Loans shall be made by the Bank or Banks whose
Competitive Bids therefor are accepted pursuant to Section 2.04 in the
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amounts so accepted and Revolving Credit Loans shall be made by the Banks
pro rata in accordance with Section 2.18. Unless the Administrative Agent
shall have received notice from a Bank prior to the date of any Borrowing,
the Administrative Agent may assume that such Bank has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with this paragraph (c) and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date
a corresponding amount. If and to the extent that such Bank shall not have
made such portion available to the Administrative Agent, such Bank and the
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 the Borrower until the
date such amount is repaid to the Administrative Agent at (i) in the case
of the Borrower, the interest rate applicable at the time to the Loans
comprising such Borrowing and (ii) in the case of such Bank, the Federal
Funds Effective Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount shall constitute such Bank's Loan as
part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest
Period requested with respect thereto would end after the Maturity Date.
SECTION2.03. Use of Proceeds. The proceeds of the Loans shall
be used to refinance outstanding Indebtedness of the Borrower under the
Existing Credit Agreements and for general working capital and corporate
purposes, including acquisitions in the health care products industry.
SECTION 2.04. Competitive Bid Procedure. (a) In order to
request Competitive Bids, the Borrower shall hand
deliver or telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit A-1, to be received by the
Administrative Agent (i) in the case of a LIBOR Competitive Borrowing, not
later than 10:00 a.m., New York City time, four Business Days before a
proposed Competitive Borrowing and (ii) in the case of a Fixed Rate
Borrowing, not later than 10:00 a.m., New York City time, one Business Day
before a proposed Competitive Borrowing. No ABR Loan shall be requested
in, or made pursuant to, a Competitive Bid Request. A Competitive Bid
Request that does not conform substantially to the format of Exhibit A-1
may be rejected in the Administrative Agent's sole discretion, and the
Administrative Agent shall promptly notify the Borrower of such rejection
by telecopier. Such request shall in each case refer to this Agreement and
specify (i) whether the Borrowing then being requested is to be a LIBOR
Borrowing or a Fixed Rate Borrowing, (ii) the date of such Borrowing (which
shall be a Business Day) and the aggregate principal amount thereof, which
shall be in a minimum principal amount of $5,000,000 and in an integral
multiple of $1,000,000, and (iii) the Interest Period with respect thereto
(which may not end after the Maturity Date). Promptly after its receipt of
a Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier (in the form set forth in
Exhibit A-2) the Banks to bid, on the terms and subject to the conditions
of this Agreement, to make Competitive Loans pursuant to the Competitive
Bid Request.
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(b) Each Bank may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request.
Each Competitive Bid by a Bank must be received by the Administrative Agent
via telecopier, in the form of Exhibit A-3, (i) in the case of a LIBOR
Competitive Borrowing, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on
the day of a proposed Competitive Borrowing. Multiple bids will be
accepted by the Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected by the
Administrative Agent after conferring with, and upon the instruction of,
the Borrower, and the Administrative Agent shall notify the Bank making
such nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (i) the principal
amount (which shall be in a minimum principal amount of $5,000,000 and in
an integral multiple of $1,000,000 and which may equal the entire principal
amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Bank is willing to make to the Borrower,
(ii) the Competitive
Bid Rate or Rates at which the Bank is prepared to make
the Competitive Loan or Loans and (iii) the Interest Period and the last
day thereof. If any Bank shall elect not to make a Competitive Bid, such
Bank shall so notify the Administrative Agent via telecopier (i) in the
case of LIBOR Competitive Loans, not later than 9:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing and (ii)
in the case of Fixed Rate Loans, not later than 9:30 a.m., New York City
time, on the day of a proposed Competitive Borrowing; provided, however,
that failure by any Bank to give such notice shall not cause such Bank to
be obligated to make any Competitive Loan as part of such Competitive
Borrowing. A Competitive Bid submitted by a Bank pursuant to this
paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the Borrower
by telecopier of all the Competitive Bids made, the Competitive Bid Rate
and the principal amount of each Competitive Loan in respect of which a
Competitive Bid was made and the identity of the Bank that made each bid.
The Administrative Agent shall send a copy of all Competitive Bids to the
Borrower for its records as soon as practicable after completion of the
bidding process set forth in this Section2.04.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (b) above. The Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopier in
the form of a Competitive Bid Accept/Reject Letter in the form of Exhibit
A-4, whether and to what extent it has decided to accept or reject any of
or all the bids referred to in paragraph (b) above, (i) in the case of a
LIBOR Competitive Borrowing, not later than 10:30 a.m., New York City time,
three Business Days before a proposed Competitive Borrowing and (ii) in the
case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City
time, on the day of a proposed Competitive Borrowing; provided, however,
that (A) the failure by the Borrower to give such notice shall be deemed to
be a rejection of all the bids referred to in paragraph (b) above, (B) the
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Borrower shall not accept a bid made at a particular Competitive Bid Rate
if the Borrower has decided to reject a bid made at a lower Competitive Bid
Rate, (C) the aggregate amount of the Competitive Bids accepted by the
Borrower shall not exceed the principal amount specified in the Competitive
Bid Request, (D) if the Borrower shall accept a bid or bids made at a
particular Competitive Bid Rate but the amount of such bid or bids shall
cause the total amount of bids to be accepted by the Borrower to exceed the
amount specified in the Competitive Bid Request, then the Borrower shall
accept a portion of such bid or bids in an amount equal to the amount
specified in the Competitive Bid Request less the amount of all other
Competitive Bids accepted at lower Competitive Bid Rates with respect to
such Competitive Bid Request (it being understood that acceptance, in the
case of multiple bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such bid at such Competitive Bid
Rate) and (E) except pursuant to clause (D) above, no bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a minimum
principal amount of $5,000,000 and an integral multiple of $1,000,000;
provided further, however, that if a Competitive Loan must be in an amount
less than $5,000,000 because of the provisions of clause (D) above, such
Competitive Loan may be in a minimum principal amount of $1,000,000 or any
integral multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular Competitive Bid
Rate pursuant to clause (D) the amounts shall be rounded to integral
multiples of $1,000,000 in a manner that shall be in the discretion of the
Borrower. A notice given by the Borrower pursuant to this paragraph (d)
shall be irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Bank whether its Competitive Bid has been accepted (and if so, in what
amount and at what Competitive Bid Rate) by telecopy sent by the
Administrative Agent, and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within four
Business Days after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Bank, it shall submit such bid
directly to the Borrower one quarter of an hour earlier than the latest
time at which the other Banks are required to submit their bids to the
Administrative Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.04 shall be given in
accordance with Section 10.01.
(i) Notwithstanding any other provisions of this Agreement, the
Borrower shall not be entitled to request any Competitive Borrowing if the
Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.05. Revolving Credit Borrowing Procedure. (a) In
order to effect a Revolving Credit Borrowing, the Borrower shall hand
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deliver or telecopy to the Administrative Agent a Borrowing notice in the
form of Exhibit A-5 (a) in the case of a LIBOR Revolving Credit Borrowing,
not later than 12:00 noon, New York City time, three Business Days before a
proposed Borrowing, and (b) in the case of an ABR Borrowing, not later than
10:00 a.m., New York City time, on the day of a proposed Borrowing. No
Fixed Rate Loan shall be requested or made pursuant to a Revolving Credit
Borrowing Request. Such notice shall be irrevocable and shall in each case
specify (a) whether the Borrowing then being requested is to be a LIBOR
Revolving Credit Borrowing or an ABR Borrowing, (b) the date of such
Revolving Credit Borrowing (which shall be a Business Day) and the amount
thereof and (c) if such Borrowing is to be a LIBOR Revolving Credit
Borrowing, the Interest Period with respect thereto (which may not end
after the Maturity Date). If no election as to the Interest Rate Type of
Revolving Credit Borrowing is specified in any such notice, then the
requested Revolving Credit Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any LIBOR Revolving Credit Borrowing is
specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If the Borrower shall
not have given notice in accordance with this Section 2.05 of its election
to refinance a Revolving Credit Borrowing prior to the end of the Interest
Period in effect for such Borrowing, then the Borrower shall (unless such
Borrowing is repaid at the end of such Interest Period) be deemed to have
given notice of an election to refinance such Borrowing with an ABR
Borrowing. The Administrative Agent shall promptly advise the Banks of any
notice given pursuant to this Section 2.05 and of each Bank's portion of
the requested Borrowing.
(b) In the event that any LIBOR Revolving Credit Borrowing
remains outstanding which has an Interest Period ending on any date after
the Termination Date, the Borrower shall elect a new Interest Period for
each such Borrowing in accordance with the procedures set forth in Section
2.05(a) above as if such Borrowing were a new Borrowing; provided that (i)
in no event may any Interest Period so selected end on a date after the
Maturity Date, and (ii) if the Borrower shall fail to give notice of a new
Interest Period for such a Revolving Credit Borrowing prior to the end of
the Interest Period in effect for such Borrowing, then the Borrower shall
be deemed to have given notice of an election to refinance such Borrowing
with an ABR Borrowing (unless such Borrowing is repaid at the end of such
Interest Period).
SECTION 2.06. Refinancings. The Borrower may refinance all or
any part of any Borrowing with a Borrowing of the same or a different
Interest Rate Type made pursuant to Section 2.04 or Section 2.05, subject
to the conditions and limitations set forth herein and elsewhere in this
Agreement, including refinancings of Competitive Borrowings with Revolving
Credit Borrowings and Revolving Credit Borrowings with Competitive
Borrowings. Any Borrowing or part thereof so refinanced shall be deemed to
be repaid in accordance with Section 2.08 with the proceeds of a new
Borrowing hereunder and the proceeds of the new Borrowing, to the extent
they do not exceed the principal amount of the Borrowing being refinanced,
shall not be paid by the Banks to the Administrative Agent or by the
Administrative Agent to the Borrower pursuant to Section 2.02(c); provided,
however, that (a) if the principal amount extended by a Bank in a
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refinancing is greater than the principal amount extended by such Bank in
the Borrowing being refinanced, then such Bank shall pay such difference to
the Administrative Agent for distribution to the Banks described in clause
(b) below, (b) if the principal amount extended by a Bank in the Borrowing
being refinanced is greater than the principal amount being extended by
such Bank in the refinancing, the Administrative Agent shall return the
difference to such Bank out of amounts received pursuant to clause (a)
above, (c) to the extent any Bank fails to pay the Administrative Agent
amounts due from it pursuant to clause (a) above, any Loan or portion
thereof being refinanced with such amounts shall not be deemed repaid in
accordance with Section 2.08 and, to the extent of such failure, the
Borrower shall pay such amount to the Administrative Agent as required by
Section 2.08, and (d) to the extent the Borrower fails to pay to the
Administrative Agent any amounts due in accordance with Section 2.08 as a
result of the failure of a Bank to pay the Administrative Agent any amounts
due as described in clause (c) above, the portion of any refinanced Loan
deemed not repaid shall be deemed to be outstanding solely to the Bank
which has failed to pay the Administrative Agent amounts due from it
pursuant to clause (a) above to the full extent of such Bank's portion of
such Loan.
SECTION 2.07. Fees. (a) The Borrower agrees to pay to each
Bank, through the Administrative Agent, on each March 31, June 30,
September 30 and December 31 and on the Maturity Date or any earlier date
on which the Commitment of such Bank shall have been terminated and the
outstanding Loans of such Bank repaid in full, a facility fee (a "Facility
Fee") on the Commitment of such Bank, whether used or unused, and, after
the Commitment of such Bank shall have been terminated, on the outstanding
principal amount of such Bank's Loans, during the quarter ending on the
date such payment is due (or shorter period commencing with the date hereof
or ending with the Maturity Date or any earlier date on which the
Commitments shall have been terminated and the outstanding Loans of such
Bank repaid in full), at a rate per annum equal to (i) from the date hereof
through the Termination Date, the Facility Fee Percentage, and (ii)
thereafter, the Term-Out Applicable Percentage from time to time in effect
(as determined in accordance with Section 2.09(e)). All Facility Fees
shall be computed on the basis of the actual number of days elapsed in a
year of 360 days. The Facility Fee due to each Bank shall commence to
accrue on the Closing Date and shall cease to accrue on the Maturity Date
or any earlier date on which the Commitment of such Bank shall have been
terminated and the outstanding Loans of such Bank repaid in full.
(b) The Borrower agrees to pay the Administrative Agent, for its
own account, the fees provided for in the letter agreement, dated September
17, 1997, between the Borrower and the Administrative Agent.
(c) All fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Banks. Once paid, none of the fees shall be
refundable under any circumstances.
SECTION 2.08. Notes; Repayment of Loans. The Competitive Loans
made by each Bank shall be evidenced by a single Competitive Note duly
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executed on behalf of the Borrower, dated the Closing Date, in
substantially the form attached hereto as Exhibit B-1 with the blanks
appropriately filled, payable to the order of such Bank in a principal
amount equal to the Total Commitment. The Revolving Credit Loans made by
each Bank shall be evidenced by a single Revolving Credit Note duly
executed on behalf of the Borrower, dated the Closing Date, in
substantially the form attached hereto as Exhibit B-2 with the blanks
appropriately filled, payable to the order of such Bank in a principal
amount equal to the Commitment of such Bank. The outstanding principal
balance of each Competitive Loan or Revolving Credit Loan, as evidenced by
the relevant Note, shall be payable (a) in the case of a Competitive Loan,
on the last day of the Interest Period applicable to such Competitive Loan
and on the Maturity Date and (b) in the case of a Revolving Credit Loan, on
the Maturity Date. Each Competitive Note and each Revolving Credit Note
shall bear interest from the date thereof on the outstanding principal
balance thereof as set forth in Section 2.09. Each Bank shall, and is
hereby authorized by the Borrower to, endorse on the schedule to the
relevant Note held by such Bank (or on a continuation of such schedule
attached to each such Note and made a part thereof), or otherwise to record
in such Bank's internal records, an appropriate notation evidencing the
date and amount of each Competitive Loan or Revolving Credit Loan, as
applicable, of such Bank, each payment or prepayment of principal of any
Competitive Loan or Revolving Credit Loan, as applicable, and the other
information provided on such schedule; provided, however, that the failure
of any Bank to make such a notation or any error therein shall not in any
manner affect the obligation of the Borrower to repay the Competitive Loans
or Revolving Credit Loans, as applicable, made by such Bank in accordance
with the terms of the relevant Note.
SECTION 2.09. Interest on Loans. (a) Subject to the provisions
of Sections 2.10 and 2.11, the Loans comprising each LIBOR Borrowing shall
bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal to (i) in the case of
each LIBOR Revolving Credit Loan, LIBOR for the Interest Period in effect
for such Borrowing plus the Applicable Percentage and (ii) in the case of
each LIBOR Competitive Loan, LIBOR for the Interest Period in effect for
such Borrowing plus the Margin offered by the Bank making such Loan and
accepted by the Borrower pursuant to Section 2.04; provided, however, that
subject to the provisions of Sections 2.10 and 2.11, all LIBOR Revolving
Credit Loans which shall remain outstanding after the Termination Date
shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at all times after the Termination Date at
a rate per annum equal to LIBOR for the Interest Period in effect for such
Borrowing plus the Term-Out Applicable Percentage.
(b) Subject to the provisions of Section 2.10, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the
case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) at a rate per annum equal to the Alternate
Base Rate.
(c) Subject to the provisions of Section 2.10, each Fixed Rate
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Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed
rate of interest offered by the Bank making such Loan and accepted by the
Borrower pursuant to Section 2.04.
(d) Interest on each Loan shall be payable on each Interest
Payment Date applicable to such Loan. The LIBOR or the Alternate Base Rate
for each Interest Period or day within an Interest Period shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
(e) The Term-Out Applicable Percentage shall be determined based
on the Consolidated Interest Coverage Ratio at the end of the most recent
fiscal quarter for which financial statements have been delivered under
Section 5.05 and based on the period of four fiscal quarters then ended
treated as a single accounting period.
SECTION 2.10. Interest on Overdue Amounts. If the Borrower
shall default in the payment of the principal of or interest on any Loan or
any other amount becoming due hereunder, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment
(after as well as before judgment) at a rate per annum computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days,
as applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate (and a year of 360 days in all other cases)
equal to (a) in the case of any Loan, the rate applicable to such Loan
under Section 2.09 plus 2% per annum and (b) in the case of any other
amount, the rate that would at the time be applicable to an ABR Loan under
Section 2.09 plus 2% per annum.
SECTION 2.11. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement
of any Interest Period for a LIBOR Borrowing, the Administrative Agent
shall have determined that dollar deposits in the amount of the requested
principal amount of such LIBOR Borrowing are not generally available in the
London interbank market, or that the rate at which such dollar deposits are
being offered will not adequately and fairly reflect the cost to any Bank
of making or maintaining such LIBOR Loans during such Interest Period, or
that reasonable means do not exist for ascertaining the LIBOR Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written
or telecopier notice of such determination to the Borrower and the Banks.
In the event of any such determination, until the Administrative Agent
shall have determined that circumstances giving rise to such notice no
longer exist, (a) any request by the Borrower for a LIBOR Competitive
Borrowing pursuant to Section 2.04 shall be of no force and effect and
shall be denied by the Administrative Agent and (b) any request by the
Borrower for a LIBOR Revolving Credit Borrowing pursuant to Section 2.05
shall be deemed to be a request for an ABR Loan. Each determination by the
Administrative Agent hereunder shall be conclusive absent manifest error;
provided, however, that if a determination is made that dollar deposits in
the amount of the requested principal amount of such LIBOR Borrowing are
not generally available in the London interbank market, or that the rate at
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which such dollar deposits are being offered will not adequately and fairly
reflect the cost to any Bank of making or maintaining such LIBOR Loans
during such Interest Period, or that reasonable means do not exist for
ascertaining the LIBOR Rate, the Administrative Agent shall promptly notify
the Borrower of such determination in writing and the Borrower may, by
notice to the Administrative Agent given within 24 hours of receipt of such
notice, withdraw the request for the LIBOR Competitive Borrowing or the
LIBOR Revolving Credit Borrowing, as applicable.
SECTION 2.12. Termination, Reduction, Increase and Extension of
Commitments. (a) The Commitments shall be automatically terminated on the
earlier of (a) the Termination Date or (b) 30 days after the date hereof if
the Closing Date has not occurred.
(b) Subject to Section 2.13(b), upon at least three Business
Days' prior irrevocable written or telecopy notice to the Administrative
Agent, the Borrower may at any time in whole permanently terminate, or from
time to time in part permanently reduce, the Total Commitment; provided,
however, that (i) each partial reduction of the Total Commitment shall be
in an integral multiple of $1,000,000 and in a minimum principal amount of
$10,000,000 and (ii) the Borrower shall not be entitled to make any such
termination or reduction that would reduce the Total Commitment to an
amount less than the aggregate outstanding principal amount of the
Competitive Loans.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Banks in accordance with their respective
Commitments. The Borrower shall pay to the Administrative Agent for the
account of the Banks on the date of each termination or reduction (in the
case of a reduction, the "Reduction Date"), the Facility Fees on the amount
of the Commitments so terminated or reduced accrued to the date of such
termination or reduction.
(d) The Borrower may from time to time, and notwithstanding any
prior reductions in the Total Commitment by the Borrower, by notice to the
Administrative Agent (which shall promptly deliver a copy to each of the
Banks), request that the Total Commitment be increased by an amount that is
not less than $25,000,000 and will not result in the Total Commitment under
this Agreement and the Facility B Credit Agreement exceeding $350,000,000
in the aggregate. Each such notice shall set forth the requested amount of
the increase in the Total Commitment and the date on which such increase is
to become effective (which shall be not fewer than 20 days after the date
of such notice), and shall offer each Bank the opportunity to increase its
Commitment by its ratable share, based on the amounts of the Banks'
Commitments, of the requested increase in the Total Commitment. Each Bank
shall, by notice to the Borrower and the Administrative Agent given not
more than 15 Business Days after the date of the Borrower's notice, either
agree to increase its Commitment by all or a portion of the offered amount
or decline to increase its Commitment (and any Bank that does not deliver
such a notice within such period of 15 Business Days shall be deemed to
have declined to increase its Commitment); provided, however, that no Bank
may agree to increase its Commitment hereunder unless it shall have agreed
to ratably increase its Commitment under the Facility B Credit Agreement
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(if the Facility B Credit Agreement is then in effect). In the event that,
on the 15th Business Day after the Borrower shall have delivered a notice
pursuant to the first sentence of this paragraph, the Banks shall have
agreed pursuant to the preceding sentence to increase their Commitments by
an aggregate amount less than the increase in the Total Commitment
requested by the Borrower, the Borrower shall have the right to arrange for
one or more banks or other financial institutions (any such bank or other
financial institution being called an "Augmenting Bank"), which may include
any Bank, to extend Commitments or increase their existing Commitments in
an aggregate amount equal to all or part of the unsubscribed amount;
provided that each Augmenting Bank, if not already a Bank hereunder, shall
be subject to the approval of the Borrower and the Administrative Agent
(which approval shall not be unreasonably withheld) and shall execute all
such documentation as the Administrative Agent shall specify to evidence
its status as a Bank hereunder. If (and only if) Banks (including
Augmenting Banks) shall have agreed to increase their Commitments or to
extend new Commitments in an aggregate amount not less than $25,000,000,
such increases and such new Commitments shall become effective on the date
specified in the notice delivered by the Borrower pursuant to the first
sentence of this paragraph, and shall be deemed added to the Commitments
set forth in Schedule 2.01 hereof. Notwithstanding the foregoing, no
increase in the Total Commitment (or in the Commitment of any Bank) shall
become effective under this paragraph unless, on the date of such increase,
(i) the conditions set forth in paragraphs (b) and (c) of Section 4.01
shall be satisfied (with all references in such paragraphs to a Borrowing
being deemed to be references to such increase) and the Administrative
Agent shall have received a certificate to that effect dated such date and
executed by a Financial Officer of the Borrower and (ii) on the effective
date of such increase the Total Commitment under and as defined in the
Facility B Credit Agreement shall be proportionately increased (if the
Facility B Credit Agreement is then in effect) in accordance with the terms
of such Agreement. Following any increase in the Commitment of any of the
Banks pursuant to this paragraph, any Revolving Credit Loans outstanding
prior to the effectiveness of such increase shall continue outstanding
until the ends of the respective interest periods applicable thereto, and
shall then be repaid or refinanced with new Revolving Credit Loans made
pursuant to Sections 2.01 and 2.05.
(e) (i) The Borrower may, by notice to the Administrative Agent
(which shall promptly deliver a copy to each of the Banks) not less than 30
days and not more than 60 days prior to the Termination Date (the
"Anniversary Date"), request that the Banks extend the Termination Date for
an additional 364 days from the Termination Date then in effect hereunder
(the "Existing Termination Date"). Each Bank shall, by notice to the
Borrower and the Administrative Agent given not more than 15 Business Days
after the date of the Borrower's notice, advise the Borrower whether or not
such Bank agrees to such extension (and any Bank that does not advise the
Borrower on or before the 15th Business Day after the date of the
Borrower's notice shall be deemed to have advised the Borrower that it will
not agree to such extension).
(ii) The Borrower shall have the right on or before the
Anniversary Date to require any Bank which shall have advised or been
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deemed to advise the Borrower that it will not agree to an extension of the
Termination Date (each a "Non-Extending Bank") to transfer without recourse
(in accordance with and subject to the restrictions contained in Section
2.23, except that the $3,500 processing fee set forth in Section
2.23(b)(iii) shall be paid by the Borrower) all its interests, rights and
obligations under this Agreement to one or more other banks or other
financial institutions (any such bank or other financial institution being
called a "Substitute Bank"), which may include any Bank; provided that (a)
such Substitute Bank, if not already a Bank hereunder, shall be subject to
the approval of the Borrower and the Administrative Agent (which approval
shall not be unreasonably withheld) and shall execute all such
documentation as the Administrative Agent shall specify to evidence its
status as a Bank hereunder, (b) such assignment shall become effective as
of the Anniversary Date and (c) the Borrower shall pay to such Non-
Extending Bank in immediately available funds on the effective date of such
assignment the principal of and interest accrued to the date of payment on
the Loans made by it hereunder and all other amounts accrued for its
account or owed to it hereunder.
(iii) If (and only if) Banks (including Substitute Banks) holding
Commitments that represent at least 662/3% of the Total Commitment shall
have agreed to extend the Existing Termination Date (the "Continuing
Banks"), then, (a) the Termination Date shall be extended to the date that
is 364 days after the Existing Termination Date, and (b) the Commitment of
each Non-Extending Bank (subject to any transfer and assignment pursuant to
paragraph (ii) above) shall terminate (but such Bank shall continue to be
entitled to the benefits of Sections 2.15, 2.17, 2.22 and 9.05), and all
Loans of such Non-Extending Bank shall become due and payable, together
with all interest accrued thereon and all other amounts owed to such Bank
hereunder, on the Existing Termination Date.
Notwithstanding the foregoing, no extension of the Termination
Date shall be effective with respect to any Bank unless, on and as of the
Anniversary Date, the conditions set forth in paragraphs (b) and (c) of
Section 4.01 shall be satisfied (with all references in such paragraphs to
a Borrowing being deemed to be references to such extension) and the
Administrative Agent shall have received a certificate to that effect,
dated the Anniversary Date, and executed by a Financial Officer of the
Borrower.
SECTION 2.13. Prepayment of Loans. (a) Prior to the Maturity
Date the Borrower shall have the right at any time to prepay any Revolving
Credit Borrowing, or, with the consent of the particular Bank or Banks to
receive the prepayment, any Competitive Borrowing (which consent may be
withheld in such Bank's or Banks' sole discretion), in whole or in part,
subject to the requirements of Section 2.17 and 2.18 but otherwise without
premium or penalty, upon prior written or telecopy notice to the
Administrative Agent before 12:00 noon, New York City time, at least one
Business Day prior to such prepayment in the case of an ABR Loan and at
least three Business Days prior to such prepayment in the case of a LIBOR
Loan or Fixed Rate Loan; provided, however, that each such partial
prepayment shall be in an integral multiple of $1,000,000 and in a minimum
aggregate principal amount of $5,000,000.
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(b) On the date of any termination or reduction of the Total
Commitment pursuant to Section 2.12, the Borrower shall pay or prepay so
much of the Revolving Credit Loans as shall be necessary in order that the
aggregate principal amount of the Competitive and Revolving Credit Loans
outstanding will not exceed such Total Commitment following such
termination or reduction. Subject to the foregoing, any such payment or
prepayment shall be applied to such Borrowing or Borrowings as the Borrower
shall select. All prepayments under this Section 2.13(b) shall be subject
to Sections 2.17 and 2.18.
(c) On any date when the aggregate outstanding Loans (after
giving effect to any Borrowings effected on such date) exceed the Total
Commitment minus any amounts due under any outstanding Scheduled Loans, the
Borrower shall make a mandatory prepayment of the Revolving Credit Loans in
such amount as may be necessary to eliminate such excess. Any prepayments
required by this paragraph shall be applied to outstanding ABR Loans up to
the full amount thereof before they are applied to outstanding LIBOR
Revolving Credit Loans.
(d) Each notice of prepayment shall specify the specific
Borrowing, the prepayment date and the aggregate principal amount of each
Borrowing to be prepaid, shall be irrevocable and shall commit the Borrower
to prepay such Borrowing by the amount stated therein. All prepayments
under this Section 2.13 shall be accompanied by accrued interest on the
principal amount being prepaid to the date of prepayment.
SECTION 2.14. Eurodollar Reserve Costs. The Borrower shall pay
to the Administrative Agent for the account of each Bank, so long as such
Bank shall be required under regulations of the Board to maintain reserves
with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (as defined in Regulation D), additional interest
on the unpaid principal amount of each LIBOR Loan made to the Borrower by
such Bank, from the date of such Loan until such Loan is paid in full, at
an interest rate per annum equal at all times during the Interest Period
for such Loan to the remainder obtained by subtracting (i) LIBOR for such
Interest Period from (ii) the rate obtained by multiplying LIBOR as
referred to in clause (i) above by the Statutory Reserves of such Bank for
such Interest Period. Such additional interest shall be determined by such
Bank and notified to the Borrower (with a copy to the Administrative Agent)
not later than five Business Days before the next Interest Payment Date for
such Loan, and such additional interest so notified to the Borrower by any
Bank shall be payable to the Administrative Agent for the account of such
Bank on each Interest Payment Date for such Loan.
SECTION 2.15. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of this
Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or not
having the force of law) (i) shall subject any Bank to, or increase the net
amount of, any tax, levy, impost, duty, charge, fee, deduction or
withholding with respect to any LIBOR Loan or Fixed Rate Loan, or shall
change the basis of taxation of payments to any Bank of the principal of or
interest on any LIBOR Loan or Fixed Rate Loan made by such Bank or any
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other fees or amounts payable hereunder (other than (x) taxes imposed on
the overall net income of such Bank by the jurisdiction in which such Bank
has its principal office or by any political subdivision or taxing
authority therein (or any tax which is enacted or adopted by such
jurisdiction, political subdivision or taxing authority as a direct
substitute for any such taxes) or (y) any tax, assessment, or other
governmental charge that would not have been imposed but for the failure of
any Bank to comply with any certification, information, documentation or
other reporting requirement), (ii) shall impose, modify or deem applicable
any reserve, special deposit or similar requirement (other than
requirements as to which the Borrower is obligated to make payments
pursuant to Section 2.14) against assets of, deposits with or for the
account of, or credit extended by, such Bank, or (iii) shall impose on such
Bank or the London interbank market any other condition affecting this
Agreement or any LIBOR Loan or Fixed Rate Loan made by such Bank, and the
result of any of the foregoing shall be to increase the cost to such Bank
of making or maintaining any LIBOR Loan or Fixed Rate Loan or to reduce the
amount of any sum received or receivable by such Bank hereunder (whether of
principal, interest or otherwise) in respect thereof by an amount deemed in
good faith by such Bank to be material, then the Borrower shall pay such
additional amount or amounts as will compensate such Bank for such increase
or reduction to such Bank upon demand by such Bank.
(b) If, after the date of this Agreement, any Bank shall have
determined in good faith that the applicability of any law, rule,
regulation or guideline adopted after the date hereof pursuant to or
arising out of the July 1988 report of the Basle Committee on Lending
Regulations and Supervisory Practices entitled "International Convergence
of Capital Measurement and Capital Standards", or the adoption after the
date hereof of any applicable law, rule, regulation or guideline regarding
capital adequacy, or any change therein, 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 any lending office of
such Bank) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the
rate of return on such Bank's capital or on the capital of the Bank's
holding company, if any, as a consequence of its obligations hereunder to a
level below that which such Bank (or holding company) could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's policies or the policies of its holding company, as the case may be,
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then, from time to time, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such
reduction upon demand by such Bank.
(c) A certificate of a Bank setting forth in reasonable detail
(i) such amount or amounts as shall be necessary to compensate such Bank
(or participating banks or other entities pursuant to Section 2.23) as
specified in paragraph (a) or (b) above, as the case may be, and (ii) the
calculation of such amount or amounts under clause (c)(i), shall be
delivered to the Borrower and shall be conclusive absent manifest error.
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The Borrower shall pay such Bank the amount shown as due on any such
certificate within 30 days after its receipt of the same.
(d) Failure on the part of any Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any Interest Period shall
not constitute a waiver of such Bank's rights to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to such Interest Period or any
other Interest Period. The protection of this Section 2.15 shall be
available to each Bank regardless of any possible contention of invalidity
or inapplicability of the law, regulation or condition which shall have
been imposed.
SECTION 2.16. Change in Legality. (a) Notwithstanding anything
to the contrary herein contained, if any change in any law or regulation or
in the interpretation thereof by any Governmental Authority charged with
the administration or interpretation thereof shall make it unlawful for any
Bank to make or maintain any LIBOR Loan or to give effect to its
obligations to make LIBOR Loans as contemplated hereby, then, by written
notice to the Borrower and to the Administrative Agent, such Bank may:
(i) declare that LIBOR Loans will not thereafter
be made by such Bank hereunder, whereupon such Bank
shall not submit a Competitive Bid in response to a
request for LIBOR Competitive Loans and the Borrower
shall be prohibited from requesting LIBOR Revolving
Credit Loans from such Bank hereunder unless such
declaration is subsequently withdrawn; and
(ii) require that all outstanding LIBOR Loans made
by it be converted to ABR Loans, in which event (A) all
such LIBOR Loans shall be automatically converted to
ABR Loans as of the effective date of such notice as
provided in Section 2.16(b) and (B) all payments and
prepayments of principal which would otherwise have
been applied to repay the converted LIBOR Loans shall
instead be applied to repay the ABR Loans resulting
from the conversion of such LIBOR Loans.
(b) For purposes of this Section 2.16, a notice to the Borrower
by any Bank pursuant to Section 2.16(a) shall be effective on the date of
receipt thereof by the Borrower.
(c) Notwithstanding the foregoing, if the affected Bank can
continue to offer LIBOR Loans by transferring LIBOR Loans to another
existing lending office of such Bank, such Bank agrees to so transfer the
LIBOR Loans unless doing so would, in its good faith judgment, subject it
to any expense or liability or be otherwise disadvantageous to it.
SECTION 2.17. Indemnity. The Borrower shall indemnify each Bank
against any loss or reasonable expense which such Bank may sustain or incur
as a consequence of (v) any failure by the Borrower to fulfill on the date
of any Borrowing hereunder the applicable conditions set forth in Article
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IV, (w) any failure by the Borrower to borrow hereunder after a notice of
Borrowing pursuant to Article II has been given, (x) any payment,
prepayment or conversion of a LIBOR Loan or Fixed Rate Loan required by any
other provision of this Agreement or otherwise made on a date other than
the last day of the applicable Interest Period, (y) any default in the
payment or prepayment of the principal amount of any Loan or any part
thereof or interest accrued thereon, as and when due and payable (at the
due date thereof, by notice of prepayment or otherwise), or (z) the
occurrence of any Event of Default, including, but not limited to, any loss
or reasonable expense sustained or incurred or to be sustained or incurred
in liquidating or employing deposits from third parties acquired to effect
or maintain such Loan or any part thereof as a LIBOR Loan or a Fixed Rate
Loan. Such loss or reasonable expense shall include an amount equal to the
excess, if any, as reasonably determined by each Bank of (i) its cost of
obtaining the funds for the Loan being paid, prepaid or converted or not
borrowed (based on LIBOR or, in the case of a Fixed Rate Loan, the fixed
rate of interest applicable thereto) for the period from the date of such
payment, prepayment or conversion or failure to borrow to the last day of
the Interest Period for such Loan (or, in the case of a failure to borrow,
the Interest Period for the Loan which would have commenced on the date of
such failure to borrow) over (ii) the amount of interest (as reasonably
determined by such Bank) that would be realized by such Bank in
re-employing the funds so paid, prepaid or converted or not borrowed for
such period or Interest Period, as the case may be. A certificate of each
Bank setting forth any amount or amounts which such Bank is entitled to
receive pursuant to this Section 2.17 shall be delivered to the Borrower
and shall be conclusive, if made in good faith, absent manifest error. The
Borrower shall pay each Bank the amount shown as due on any certificate
containing no manifest error within 30 days after its receipt of the same.
SECTION 2.18. Pro Rata Treatment. Except as permitted under
Sections 2.14, 2.15(c), 2.16 and 2.17 with respect to interest, (I) each
Revolving Credit Borrowing, each payment or prepayment of principal of any
Revolving Credit Borrowing, each payment of interest on the Revolving
Credit Loans, each payment of the Facility Fees, each reduction of the
Commitments and each refinancing of any Borrowing with, conversion of any
Borrowing to or continuation of any Borrowing as a Revolving Credit
Borrowing of any Interest Rate Type shall be allocated pro rata among the
Banks in accordance with their respective Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amount of their outstanding Revolving Credit Loans).
Each payment of principal of any Competitive Borrowing shall be allocated
pro rata among the Banks participating in such Borrowing in accordance with
the respective principal amounts of their outstanding Competitive Loans
comprising such Borrowing. Each payment of interest on any Competitive
Borrowing shall be allocated pro rata among the Banks participating in such
Borrowing in accordance with the respective amounts of accrued and unpaid
interest on their outstanding Competitive Loans comprising such Borrowing.
For purposes of determining the available Commitments of the Banks at any
time, each outstanding Competitive Borrowing shall be deemed to have
utilized the Commitments of the Banks (including those Banks that shall not
have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments. Each Bank agrees that in
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computing such Bank's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bank's percentage
of such Borrowing computed in accordance with Section 2.01, to the next
higher or lower whole dollar amount.
SECTION 2.19. Right of Setoff. If any Event of Default shall
have occurred and be continuing and any Bank shall have requested the
Administrative Agent to declare the Notes immediately due and payable
pursuant to Article VII, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Bank to or for the credit or the account of the Borrower against any of and
all the Obligations now or hereafter existing under this Agreement and the
Notes held by such Bank, irrespective of whether or not such Bank shall
have made any demand under this Agreement or such Notes and although such
obligations may be unmatured. Each Bank agrees promptly to notify the
Borrower after any such setoff and application made by such Bank, but the
failure to give such notice shall not affect the validity of such setoff
and application. The rights of each Bank under this Section 2.19 are in
addition to other rights and remedies (including other rights of setoff)
which such Bank may have.
SECTION 2.20. Sharing of Setoffs. Each Bank agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower including, but not limited to, a secured
claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim,
received by such Bank under any applicable bankruptcy, insolvency or other
similar law or otherwise, obtain payment (voluntary or involuntary) in
respect of any Revolving Credit Note held by it (it being understood that
each Bank shall be permitted to exercise any such right with respect to any
obligation of the Borrower to it other than the Revolving Credit Notes
prior to the exercise of such right with respect to any Revolving Credit
Note) as a result of which the unpaid principal portion of all the
Revolving Credit Notes held by it shall be proportionately less than the
unpaid principal portion of all the Revolving Credit Notes held by any
other Bank, it shall be deemed to have simultaneously purchased from such
other Bank a participation in each Revolving Credit Note held by such other
Bank, so that the aggregate unpaid principal amount of each Revolving
Credit Note and participations in each Revolving Credit Note held by each
Bank shall be in the same proportion to the aggregate unpaid principal
amount of all the Revolving Credit Notes then outstanding as the principal
amount of all the Revolving Credit Notes held by it prior to such exercise
of banker's lien, setoff or counterclaim was to the principal amount of all
Revolving Credit Notes outstanding prior to such exercise of banker's lien,
setoff or counterclaim; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section 2.20 and
the payment recovered by a Bank giving rise thereto shall thereafter be
recovered from such Bank, such purchase or purchases or adjustments shall
be rescinded to the extent of such recovery and the purchase price or
prices or adjustments paid by such Bank restored to such Bank without
interest. The Borrower expressly consents to the foregoing arrangements
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and agrees that any Bank holding a participation in a Revolving Credit Note
deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim to the extent of the participation so
purchased in such Revolving Credit Note with respect to any and all moneys
owing by the Borrower as fully as if such Bank had made a Loan directly to
the Borrower in the amount of the participation.
SECTION 2.21. Payments. The Borrower shall make each payment
hereunder and under any instrument delivered hereunder not later than 12:00
noon, New York City time, on the day when due in lawful money of the United
States (in freely transferable dollars) to the Administrative Agent at its
offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the account of
the Banks, in Federal or other immediately available funds. Any payment
received after such time on any day shall be deemed to be received on the
next Business Day. The Administrative Agent shall remit each Bank's
portion of the Borrower's payment to such Bank promptly after receipt
thereof. Except as set forth in the definition of "Interest Period" as
applied to LIBOR Loans, if any payment to be made hereunder or under any
Note becomes due and payable on a day other than a Business Day, such
payment may be made on the next succeeding Business Day and such extension
of time shall in such case be included in computing interest, if any, in
connection with such payment.
SECTION 2.22. United States Withholding. (a) Prior to the date
of the initial Loans hereunder, and from time to time thereafter if
requested by the Borrower or the Administrative Agent or required because,
as a result of a change in law or a change in circumstances or otherwise, a
previously delivered form or statement becomes incomplete or incorrect in
any material respect, each Bank organized under the laws of a jurisdiction
outside the United States shall provide, if legally able to do so and if
applicable, the Administrative Agent and the Borrower with complete,
accurate and duly executed forms or other statements prescribed by the
Internal Revenue Service of the United States certifying such Bank's
exemption from, or entitlement to a reduced rate of, United States
withholding taxes (including backup withholding taxes) with respect to all
payments to be made to such Bank hereunder and under the Notes.
(b) The Borrower and the Administrative Agent shall be entitled
to deduct and withhold any and all present or future taxes or withholdings,
and all liabilities with respect thereto, from payments hereunder or under
the Notes, if and to the extent that the Borrower or the Administrative
Agent in good faith determines that such deduction or withholding is
required by the law of the United States, including, without limitation,
any applicable treaty of the United States. In the event the Borrower or
the Administrative Agent shall so determine that deduction or withholding
of taxes is required, it shall advise the affected Bank as to the basis of
such determination prior to actually deducting and withholding such taxes.
In the event the Borrower or the Administrative Agent shall so deduct or
withhold taxes from amounts payable hereunder, it (i) shall timely pay to
or deposit with the appropriate taxing authority in a timely manner the
full amount of taxes it has deducted or withheld, (ii) shall promptly
provide to the Banks written evidence of payment of such taxes to, or the
deposit thereof with, the appropriate taxing authority and a statement
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setting forth the amount of taxes deducted or withheld, the applicable
rate, and any other information or documentation reasonably requested by
the Banks from whom the taxes were deducted or withheld, and (iii) shall
forward to such Banks any payment or deposit of the deducted or withheld
taxes as may be issued from time to time by the appropriate taxing
authority. Unless the Borrower and the Administrative Agent have received
forms or other documents reasonably satisfactory to them indicating that
payments hereunder or under the Notes are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Borrower or the Administrative Agent may
withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Bank organized under the laws of a
jurisdiction outside the United States.
(c) Each Bank agrees (i) that as between it and the Borrower or
the Administrative Agent, it shall be the Person to deduct and withhold
taxes, and to the extent required by law it shall deduct and withhold
taxes, on amounts that such Bank may remit to any other Person(s) by reason
of any undisclosed transfer or assignment of an interest in this Agreement
to such other Person(s) pursuant to Section 2.23 and (ii) to indemnify the
Borrower and the Administrative Agent and any officers, directors, agents,
or employees of the Borrower or the Administrative Agent against and to
hold them harmless from any tax, interest, additions to tax, penalties,
reasonable counsel and accountants' fees, disbursements or payments arising
from the assertion by any appropriate taxing authority of any claim against
them relating to a failure to withhold taxes as required by law with
respect to amounts described in clause (i) of this paragraph (c).
(d) Each assignee of a Bank's interest in this Agreement in
conformity with Section 2.23 shall be bound by this Section 2.22, so that
such assignee will have all of the obligations and provide all of the forms
and statements and all indemnities, representations and warranties required
to be given under this Section 2.22.
(e) In the event that any withholding or similar taxes shall
become payable as a result of any change in any statute, treaty, ruling,
judicial decision, determination or regulation, or other change in law
(other than a change in the rate of taxes imposed on the overall net income
of any Bank) occurring after the Initial Date in respect of any sum payable
hereunder or under any other Fundamental Document to any Bank or the
Administrative Agent or as a result of any payment being made by a
Guarantor organized in or subject to any taxing jurisdiction outside the
United States (i) the sum payable by the Borrower shall be increased as may
be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.22)
such Bank or the Administrative 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 shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law. For purposes of this
Section 2.22, the term "Initial Date" shall mean (i) in the case of the
Administrative Agent, the date hereof, (ii) in the case of each Bank as of
the date hereof, the date hereof and (iii) in the case of any other Bank,
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the date of the Assignment and Acceptance pursuant to which it became a
Bank.
SECTION 2.23. Participations; Assignments. (a) Each Bank may
without the consent of the Borrower sell participations to one or more
banks or other entities in all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans owing to it and the Notes held by it); provided, however, that (i)
such Bank's obligations under this Agreement shall remain unchanged, (ii)
such Bank shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participating banks or other
entities shall be entitled to the cost protection provisions contained in
Section 2.15 and Section 2.17 but shall not be entitled to receive pursuant
to such provisions an amount larger than its share of the amount to which
the Bank granting such participation would have been entitled and (iv) the
Borrower, the Administrative Agent and the other Banks shall continue to
deal solely and directly with such Bank in connection with such Bank's
rights and obligations under this Agreement; provided further that each
Bank shall retain the sole right and responsibility vis-a-vis the Borrower
to enforce the obligations of the Borrower relating to the Loans and shall
retain all voting rights, including the right to approve any amendment,
modification or waiver of any provision of this Agreement other than
amendments, modifications or waivers with respect to any Facility Fees, the
amount of principal or the rate of interest payable on, or the maturity of,
the Loans as applicable to the participating banks or other entities (as to
which such participating banks or other entities shall be afforded the
right to vote).
(b) Each of the Banks may but only with the prior written
consent of the Borrower, which consent shall not be unreasonably withheld,
and (unless the assignee is a bank or trust company with a combined capital
and surplus of at least $100,000,000) with the written consent of the
Administrative Agent, which consent shall not be unreasonably withheld,
assign to one or more banks or other entities all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the same portion of the Revolving Credit
Loans at the time owing to it and the Revolving Credit Note held by it);
provided, however, that (i) each such assignment shall be of a constant,
and not a varying, percentage of the assigning Bank's rights and
obligations under this Agreement, and (ii) the amount of the Commitment of
the assigning Bank subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Bank) shall be either the entire Commitment of such Bank
or a portion thereof in a principal amount of $10,000,000 or a larger
integral multiple of $1,000,000, and (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register (as defined below), an Assignment
and Acceptance, together with any Note or Notes subject to such assignment
and a processing and recordation fee of $3,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be
not earlier than five Business Days after the date of acceptance and
recording by the Administrative Agent, (x) the assignee thereunder shall be
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a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder and under
the other Fundamental Documents and (y) the assigning Bank thereunder
shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of the
assigning Bank's rights and obligations under this Agreement, such
assigning Bank shall cease to be a party hereto). Notwithstanding the
foregoing, any Bank assigning its rights and obligations under this
Agreement may retain any Competitive Loans made by it outstanding at such
time, and in such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in accordance
with this Agreement.
(c) Notwithstanding the other provisions of this Section 2.23,
each Bank may at any time assign all or a portion of its interests, rights
and obligations under this Agreement (including, without limitation, all or
a portion of its Commitment and the same portion of the Loans at any time
owing to it and the Notes held by it) to (i) any Affiliate of such Bank
described in clause (b) of the definition of Affiliate or (ii) any other
Bank hereunder.
(d) By executing and delivering an Assignment and Acceptance,
the assigning Bank thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other
than the representation and warranty that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse
claim, the assigning Bank makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Fundamental Documents or any other instrument or document
furnished pursuant hereto or thereto; (ii) such Bank assignor makes no
representation or warranty and assumes no responsibility with respect to
the financial condition of the Borrower or any of the Subsidiaries or any
other obligor under the Fundamental Documents or the performance or
observance by the Borrower (on behalf of itself or the Subsidiaries) or any
of the Guarantors or any other obligor under the Fundamental Documents of
any of their respective obligations under the Fundamental Documents or any
other instrument or document furnished pursuant hereto or thereto; (iii)
such assignee confirms that it has received a copy of this Agreement,
together with copies of the most recent financial statements delivered
pursuant to Sections 5.05(a) and 5.05(b) (or if none of such financial
statements shall have then been delivered, then copies of the financial
statements referred to in Section 3.05 hereof) and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the assigning Bank,
the Administrative Agent or any other person that has become a 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
action under this Agreement; (v) such assignee appoints and authorizes the
Administrative Agent to take such action on its behalf as the
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Administrative Agent deems appropriate and to exercise such powers under
the Fundamental Documents as are delegated to the Administrative Agent by
the terms thereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(e) The Administrative Agent shall maintain at its address at
which notices are to be given to it pursuant to Section 10.01 a copy of
each Assignment and Acceptance and a register for the recordation of the
names and addresses of the Banks and the Commitments of, and principal
amount of the Loans owing to, each Bank from time to time (the "Register").
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Banks may treat
each person whose name is recorded in the Register as a Bank hereunder for
all purposes of the Fundamental Documents. The Register shall be available
for inspection by the Borrower or any Bank at any reasonable time and from
time to time upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank and an assignee together with any Notes subject to such
assignment and evidence of the Borrower's written consent to such
assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in the form of Exhibit E hereto, (i)
accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt written notice
thereof to the Borrower. Within five Business Days after receipt of the
notice, the Borrower, at its own expense, shall execute and deliver to the
Bank, in exchange for the surrendered Notes, as applicable (x) a new
Competitive Note to the order of such assignee in an amount equal to the
Total Commitment and a new Revolving Credit Note to the order of such
assignee in an amount equal to the portion of the Commitment assumed by it
pursuant to such Assignment and Acceptance and, (y) a new Revolving Credit
Note to the order of the assigning Bank in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Credit Notes shall
be in an aggregate principal amount equal to the aggregate principal amount
of such assumed Commitment and retained Commitment, such new Notes shall be
dated the date of the surrendered Notes and shall otherwise be in
substantially the forms of Exhibits B-1 and B-2 hereto, as the case may be.
In addition, the Borrower will promptly, at its own expense, execute such
amendments to the Fundamental Documents to which it is a party and such
additional documents and cause the Guarantors to execute amendments to the
Fundamental Documents to which it is a party, and take such other actions
as the Administrative Agent or the assignee Bank may reasonably request in
order to confirm that such assignee Bank is entitled to the full benefit of
the guarantees contemplated hereby to the extent of such assignment.
(g) Notwithstanding any other provision herein, any Bank may, in
connection with any assignment or participation or proposed assignment or
participation pursuant to this Section 2.23, disclose to the assignee or
participant or proposed assignee or participant, any information relating
to the Borrower or any of the Subsidiaries furnished to such Bank or the
Administrative Agent by or on behalf of the Borrower; provided that prior
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to any such disclosure, each such assignee or participant or proposed
assignee or participant shall agree in writing to preserve the
confidentiality of any confidential information relating to the Borrower or
any of their Subsidiaries received from such Bank on the terms of Section
10.11.
(h) Any Bank may at any time pledge or assign all or any portion
of its rights under this Agreement and the Notes to a Federal Reserve Bank.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Banks that:
SECTION 3.01. Organization; Corporate Powers. (a) Each of the
Borrower and the Subsidiaries is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) each of the Borrower, and the Subsidiaries (i) has the
corporate power and authority to own its property and to carry on its
business as now conducted and (ii) is qualified to do business in every
jurisdiction where such qualification is necessary except where the failure
so to qualify would not have a materially adverse effect on the condition,
financial or otherwise, of the Borrower or of the Borrower and its
Consolidated Subsidiaries taken as a whole; (c) each of the Borrower and
the Guarantors has the corporate power to execute, deliver and perform its
obligations under the Fundamental Documents to which it is a party and the
Borrower has the corporate power to borrow hereunder and to execute and
deliver the Notes; and (d) each of the Guarantors has the corporate power
and authority to guarantee the Obligations as contemplated by Article VIII
hereof.
SECTION 3.02. Authorization. The execution, delivery and
performance of this Agreement and the other Fundamental Documents to which
the Borrower or any of the Guarantors is or is to be a party, by each such
party; in the case of the Borrower, the Borrowings hereunder and the
execution and delivery of the Notes; and in the case of each Guarantor, the
guaranty of the Obligations as contemplated in Article VIII (a) have been
duly authorized by all requisite corporate action on the part of the
Borrower and each Guarantor; and (b) will not (i) violate (A) any law, rule
or regulation of the United States or any state or political subdivision
thereof, the certificate of incorporation or By-laws of the Borrower or any
of the Consolidated Subsidiaries, (B) any applicable order of any court or
other agency of government or (c) any indenture, any agreement for borrowed
money, any bond, note or other similar instrument or any other material
agreement or contract to which the Borrower or any of the Consolidated
Subsidiaries is a party or by which the Borrower or any of the Consolidated
Subsidiaries or any of their respective properties are bound, (ii) be in
conflict with, result in a breach of or constitute (with notice or lapse of
time or both) a default under any such indenture, agreement, bond, note,
instrument or other material agreement or contract or (iii) result in the
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creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any property or assets of the Borrower or any of the
Consolidated Subsidiaries except that, in the case of all the above, for
any such violations, conflicts, breaches, defaults, liens, charges or
encumbrances which would not have a material adverse effect on the Borrower
and its Consolidated Subsidiaries taken as a whole or adversely affect the
rights or interests of the Banks.
SECTION 3.03. Enforceability. This Agreement and each other
Fundamental Document to which the Borrower or any of the Guarantors is a
party, is a legal, valid and binding obligation of each such party thereto,
and is enforceable against each such party thereto in accordance with its
terms, except as the enforceability thereof may be limited by the effect of
any applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and by general principles of equity.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, or registration or filing with, or any other action by any
Governmental Authority is required in connection with the execution,
delivery and performance by the Borrower and any of the Guarantors of this
Agreement or of any other Fundamental Document to which it is a party, the
Borrowings hereunder, the guarantee by the Guarantors of the Obligations
under Article VIII or the execution and delivery of the Notes.
SECTION 3.05. Financial Statements and Condition. (a) The
Borrower has heretofore furnished to each of the Banks audited Consolidated
balance sheets of the Borrower and its Consolidated Subsidiaries as of
December 31, 1996 and unaudited condensed Consolidated balance sheets of
the Borrower and its Consolidated Subsidiaries as of June 30, 1997 and the
related audited (or, in the case of the fiscal period ended June 30, 1997,
unaudited condensed) Consolidated statements of income, Consolidated
statements of stockholders' equity and Consolidated statements of cash
flows for each of the fiscal periods then ended, together with related
notes and supplemental information. The audited consolidated balance
sheet, statement of income, statement of stockholders' equity and statement
of cash flows are referred to herein as the "Audited Financial Statements."
The unaudited condensed consolidated balance sheet, statement of income,
statement of stockholders' equity and statement of cash flows are referred
to herein as the "Unaudited Financial Statements." The Audited Financial
Statements and the notes thereto were prepared in accordance with generally
accepted accounting principles consistently applied, and present fairly the
Consolidated financial position and results of operations and cash flows of
the Borrower and its Consolidated Subsidiaries as of the dates and for the
periods indicated, and such balance sheets and related notes show all known
direct liabilities and all known contingent liabilities of a material
nature of the Borrower and its Consolidated Subsidiaries as of such dates
which are required to be included in such financial statements and the
notes thereto in accordance with generally accepted accounting principles.
The Unaudited Financial Statements reflect all adjustments (consisting only
of normal accounting adjustments) which in the opinion of management of the
Borrower are necessary for a fair presentation of the financial position,
results of operations and cash flows of the Borrower for the period
presented.
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(b) The Borrower has delivered to each of the Banks pro forma
consolidated financial forecasts for the years 1997-1999, consisting of an
income statement, balance sheet, and statement of cash flows together with
a statement of the underlying assumptions. Such pro forma financial
statements are based on good faith estimates and assumptions believed to be
reasonable by senior management of the Borrower as of the Execution Date.
(c) None of the Borrower or any Guarantor (each, a "Credit
Party") is entering into the arrangements contemplated hereby and by the
other Fundamental Documents or intends to make any transfer or incur any
obligations hereunder or thereunder, with actual intent to hinder, delay or
defraud either present or future creditors. On and as of the date of the
initial Borrowing hereunder on a Pro Forma Basis after giving effect to all
Indebtedness (including the Loans hereunder and the Indebtedness incurred
by each Credit Party in connection therewith) (w) each Credit Party expects
the cash available to such Credit Party and its Subsidiaries on a
Consolidated basis, after taking into account all other anticipated uses of
the cash of such Credit Party (including the payments on or in respect of
debt referred to in clause (y) of this Section 3.05(c)), will be sufficient
to satisfy all final judgments for money damages which have been docketed
against such Credit Party and such Subsidiaries or which such Credit Party
believes may be rendered against such Credit Party and such Subsidiaries in
any action in which such Credit Party is a defendant on the Closing Date
(taking into account the reasonably anticipated maximum amount of any such
judgment and such Credit Party's belief as to the earliest time at which
such judgment might be entered); (x) the sum of the present fair saleable
value of the assets of each Credit Party and its Subsidiaries on a
Consolidated basis will exceed the probable liability of such Credit Party
and such Subsidiaries on their debts (including their obligations under the
Guaranty); (y) no Credit Party and its Subsidiaries on a Consolidated basis
will have incurred or intends to incur, or believes that it will incur,
debts beyond its ability to pay such debts as such debts mature (taking
into account the timing and amounts of cash to be received by such Credit
Party and such Subsidiaries from any source, and amounts to be payable on
or in respect of debts of such Credit Party and such Subsidiaries and the
amounts referred to in clause (w)); and (z) each Credit Party and its
Subsidiaries on a Consolidated basis have sufficient capital with which to
conduct their present and proposed business and the property of such Credit
Party and such Subsidiaries does not constitute unreasonably small capital
with which to conduct their present or proposed business. For purposes of
this Section 3.05, "debt" means any liability on a claim, and "claim" means
(i) right to payment whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed
(other than those being disputed in good faith), undisputed, legal,
equitable, secured or unsecured, or (ii) right to an equitable remedy for
breach of performance if such breach gives rise to a payment, whether or
not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured. For purposes of this Section 3.05, "present fair
saleable value" means the amount that may be realized if any person's
assets are sold as an entirety with reasonable promptness in an
arm's-length transaction under conditions for the sale of comparable
business enterprises obtaining at the time of determination.
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SECTION 3.06. No Material Adverse Change. There has been no
material adverse change in the business, assets, condition (financial or
otherwise) or results of operations of the Borrower and its Consolidated
Subsidiaries taken as a whole since December 31, 1996 except as previously
disclosed in writing to the Banks prior to the Execution Date.
SECTION 3.07. Title to Properties. All assets of the Borrower
and the Subsidiaries are free and clear of Liens, except such as are
permitted by Section 6.01.
SECTION 3.08. Litigation. There are no actions, suits or
proceedings (whether or not purportedly on behalf of the Borrower or any of
the Subsidiaries), pending or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of the Subsidiaries at law or in
equity or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, which involve any of the transactions herein contemplated, or
which have a reasonable likelihood of being determined adversely and if
determined adversely to the Borrower or any of the Subsidiaries, would
result in a material adverse change in the business, operations, prospects,
properties, assets or condition (financial or otherwise) of the Borrower
and its Consolidated Subsidiaries taken as a whole and neither the Borrower
nor any of the Subsidiaries is in default with respect to any judgment,
writ, injunction, decree, rule or regulation of any court or Federal,
state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which default would
have a materially adverse effect on the Borrower and its Consolidated
Subsidiaries taken as a whole or have an adverse effect on the Borrower's
or the Guarantors' ability to comply with this Agreement or any other
Fundamental Document.
SECTION 3.09. Tax Returns. The Borrower and each of the
Subsidiaries have timely filed or caused to be filed all Federal, state and
local tax returns which, to the knowledge of the Borrower or such
Subsidiary after due inquiry, are required to be filed and have paid or
caused to be paid all taxes required to be paid with respect to such
returns or any assessment received by it or by any of them to the extent
that such taxes have become due, except taxes the validity of which are
being contested in good faith by appropriate actions or proceedings and
with respect to which the Borrower or such Subsidiary, as the case may be,
shall have made such reserve, or other adequate provision, if any, as shall
be required by generally accepted accounting principles, and except for the
filing of such returns as to which the failure to file will not, either
individually or in the aggregate, have a material adverse effect on the
Borrower and its Consolidated Subsidiaries taken as a whole, or have an
adverse effect on the Borrower's or the Guarantors' ability to comply with
this Agreement or any other Fundamental Document.
SECTION 3.10. Agreements. (a) None of the Borrower nor any of
the Subsidiaries is subject to any charter or other corporate restriction
materially and adversely affecting its business, properties, assets,
operations or condition (financial or otherwise) or a party to any
agreement or instrument materially and adversely affecting the business,
properties, assets, operations or condition (financial or otherwise) of the
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Borrower and its Consolidated Subsidiaries taken as a whole. None of the
Borrower or any of the Subsidiaries is in default in the performance,
observance or fulfillment of any agreement or instrument for borrowed money
by which it is bound, or any other agreement or instrument by which it is
bound which individually or in the aggregate materially and adversely
affects the business, properties, assets, operations or condition
(financial or otherwise) of the Borrower and its Consolidated Subsidiaries
taken as a whole.
(b) The Administrative Agent has been provided at or prior to
the Execution Date (i) copies of all credit agreements, indentures and
other agreements related to Indebtedness for borrowed money of the Borrower
or any of the Subsidiaries in an amount greater than $10,000,000 and, to
the extent requested by the Administrative Agent, copies of any other
credit agreements, indentures and other agreements related to Indebtedness
for borrowed money of the Borrower or any of the Subsidiaries and (ii)
access to (and copies of, to the extent requested) any other contracts or
purchase agreements (including collective bargaining agreements) which are
material to the Borrower or the Subsidiaries.
SECTION 3.11. Employee Benefit Plans. (a) The Borrower and
each of its ERISA Affiliates is in compliance in all material respects with
the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder. No Reportable Event has occurred
with respect to any Plan (other than Plans which have been terminated and
as to which the Borrower and its ERISA Affiliates do not have any
significant remaining obligations or liabilities in connection therewith)
as to which the Borrower or any of its ERISA Affiliates was required to
file a report with the PBGC, and the present value of all benefit
liabilities under each Plan maintained by the Borrower or any of its ERISA
Affiliates (based on those assumptions used to fund such Plan) did not, as
of the last annual valuation date applicable thereto, exceed by a material
amount the value of the assets of such Plan. No plan has incurred an
"accumulated funding deficiency" within the meaning of Section 412(a) or
sought or obtained a waiver under Section 412(d)(1) or an extension of time
under Section 412(e) of the Code. No suit, action or other litigation or
investigation or a claim (excluding claims for benefits incurred in the
ordinary course of Plan activities) has been threatened or brought against
or with respect to any Plan. To the best of the knowledge of the Borrower
and each of its ERISA Affiliates (i) no payment required to be made under
any Plan would be nondeductible under Section 280G of the Code, and (ii) in
the case of each Plan intended to qualify under Section 401(a) of the Code,
all amendments required by the Tax Reform Act of 1986 and subsequent
legislation for the continuing qualification of such Plan have been
approved and adopted.
(b) None of the Borrower or any of its ERISA Affiliates has
incurred any Withdrawal Liability that materially adversely affects the
financial condition of the Borrower and its Consolidated Subsidiaries taken
as a whole. None of the Borrower or any of its ERISA Affiliates has
received any notification that any Multiemployer Plan is in reorganization
or has been terminated, within the meaning of Title IV of ERISA, and no
Multiemployer Plan is reasonably expected to be in reorganization or to be
127
terminated, where such reorganization has resulted or can reasonably be
expected to result in an increase in the contributions required to be made
to such Plan that would materially and adversely affect the financial
condition of the Borrower and its Consolidated Subsidiaries taken as a
whole.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act; Federal Power Act. None of the Borrower or the Subsidiaries
is or will during the term of this Agreement be (i) an "investment company"
as the term is defined in the Investment Company Act of 1940, as amended,
(ii) subject to regulation under the Investment Company Act of 1940, as
amended, (iii) a "holding company" as that term is defined in the Public
Utility Holding Company Act of 1935 or (iv) subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act or any
foreign, Federal or local statute or regulation limiting its ability to
incur indebtedness for money borrowed or guarantee such indebtedness as
contemplated hereby.
SECTION 3.13. Federal Reserve Regulations. Subject to Section
4.01(d), none of the Borrower or any of the Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any margin stock
(within the meaning of Regulation U). No part of the proceeds of the Loans
hereunder will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that violates, or
is inconsistent with, the provisions of Regulations G, T, U or X. If
requested by any Bank, the Borrower will furnish to such Bank a statement,
in conformity with the regulations, on Federal Reserve Form U-1 referred to
in said Regulation U.
SECTION 3.14. Defaults; Compliance with Laws. None of the
Borrower or any of the Subsidiaries is in default under this Agreement or
otherwise in default under any other agreements with respect to borrowed
money in an aggregate outstanding principal amount of $10,000,000 or more.
The Borrower and each of the Subsidiaries has conducted its business and
affairs so as to comply in all respects material to the Borrower and its
Consolidated Subsidiaries taken as a whole with all applicable Federal,
state and local laws and regulations.
SECTION 3.15. Use of Proceeds. Proceeds of the Loans will be
used for the purposes referred to in Section 2.03.
SECTION 3.16. Affiliated Companies. Set forth on Schedule 3.16
hereto is a complete and accurate list of all of the Subsidiaries of the
Borrower and other persons in which the Borrower or a Subsidiary holds
voting stock or a similar interest (other than companies as to which the
Borrower or a Subsidiary, as applicable, owns, directly or indirectly, less
than 5% of the outstanding voting stock), showing as of the Closing Date as
to Subsidiaries (i) the jurisdiction of its incorporation, (ii) the number
of shares of each class of capital stock authorized, (iii) the number of
such shares outstanding, (iv) the percentage of such shares held directly
or indirectly by the Borrower or a Subsidiary, as applicable, and (v) the
number of such shares covered by outstanding options, warrants, or rights
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held directly or indirectly by the Borrower or a Subsidiary, as applicable.
Except as set forth on Schedule 3.16, all of the outstanding capital stock
of all of such Subsidiaries has been validly issued, is fully paid and
nonassessable and is owned as set forth in Schedule 3.16 (directly or
indirectly) by the Borrower or a Subsidiary, except for shares required to
be owned by other persons under applicable foreign law (which shares do not
exceed, for any such Subsidiary, 5% of the total outstanding shares of such
Subsidiary), free and clear of all Liens and any options, warrants and
other similar rights except as contemplated by the Existing Credit
Agreements.
SECTION 3.17. Environmental Liabilities. (a) Except as set
forth on Schedule 3.17 hereof, the Borrower and the Consolidated
Subsidiaries have not used, stored, treated, transported, manufactured,
refined, handled, produced or disposed of any Hazardous Materials on,
under, at, from, or in any way affecting any of their properties or assets,
or otherwise, in any manner which at the time of the action in question
violated any Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal
of Hazardous Materials and to the best of the Borrower's knowledge, but
without independent inquiry, no prior owner of such property or asset or
any tenant, subtenant, prior tenant or prior subtenant thereof has used
Hazardous Materials on, from or affecting such property or asset, or
otherwise, in any manner which at the time of the action in question
violated any Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal
of Hazardous Materials, except in each instance such violations as in the
aggregate would not have a material adverse effect upon the Borrower and
the Consolidated Subsidiaries taken as a whole.
(b) Except as set forth on Schedule 3.17, the Borrower and its
Consolidated Subsidiaries do not have any obligations or liabilities,
matured or not matured, absolute or contingent, assessed or unassessed,
which such would reasonably be expected to have a materially adverse effect
on the business or financial condition of the Borrower and its Consolidated
Subsidiaries taken as a whole and, except as set forth in Schedule 3.17, no
claims have been made against the Borrower or any of its Consolidated
Subsidiaries during the past five years and no presently outstanding
citations or notices have been issued against the Borrower or its
Consolidated Subsidiaries, where such would reasonably be expected to have
a materially adverse effect on the business or financial condition of the
Borrower and its Consolidated Subsidiaries taken as a whole, which in
either case have been or are imposed by reason of or based upon any
provision of any Environmental Laws, including, without limitation, any
such obligations or liabilities relating to or arising out of or
attributable, in whole or in part, to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
any Hazardous Materials by the Borrower or the Consolidated Subsidiaries,
in their respective capacities as such, or any of their respective
employees, agents, representatives or predecessors in interest in
connection with or in any way arising from or relating to the Borrower, the
Consolidated Subsidiaries or any of their respective properties, or
relating to or arising from or attributable, in whole or in part, to the
manufacture, processing, distribution, use, treatment, storage, disposal,
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transport or handling of any such substance, by any other Person at or on
or under any of the real properties owned or used by the Borrower, the
Consolidated Subsidiaries or any other location where such would have a
materially adverse effect on the business or financial condition of the
Borrower and its Consolidated Subsidiaries taken as whole.
SECTION 3.18. Disclosure. Neither this Agreement nor any
agreement, document, certificate or written statement furnished to any Bank
or to the Administrative Agent for the benefit of the Banks by or on behalf
of the Borrower or any of the Subsidiaries in connection with the
transactions contemplated hereby, at the time it was furnished contained
any untrue statement of a material fact or omitted to state a material
fact, under the circumstances under which it was made, necessary in order
to make the statements contained herein or therein not misleading provided
that no representation or warranty other than that set forth in Section
3.05(b) is made with respect to the pro forma consolidated financial
forecasts of the Borrower for the years 1997-1999. At the date hereof,
there is no fact known to the Borrower which materially and adversely
affects, or in the future is reasonably expected to materially and
adversely affect, the business, assets or financial condition, of the
Borrower and its Consolidated Subsidiaries taken as a whole (other than
facts or conditions affecting the economy generally).
SECTION 3.19. Insurance. As of the date of this Agreement, all
insurance maintained by the Borrower and its Subsidiaries on their
insurable properties and all other insurance maintained by them is in full
force and effect and all premiums required to have been paid have been duly
paid.
ARTICLE IV
Conditions of Lending
---------------------
SECTION 4.01. All Borrowings. The obligations of each of the
Banks to make Loans hereunder on the date of each Borrowing hereunder,
including each refinancing of any Loan with a new Loan as contemplated by
Section 2.06, shall be subject to the following conditions precedent:
(a) Notice. The Administrative Agent shall have received a
notice of such Borrowing as required by Section 2.04 or 2.05, as
applicable.
(b) Representations and Warranties. The representations and
warranties set forth in Article III (except, in the case of a refinancing
of a Borrowing with another Borrowing that does not increase the aggregate
principal amount of the Loans of any Bank outstanding, the representations
contained in Sections 3.06 and 3.08) shall be true and correct in all
material respects on and as of the date of such Borrowing with the same
effect as if made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date.
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(c) No Default. The Borrower and each of the Guarantors shall
be and the Borrower shall have caused each of the Subsidiaries to be in
compliance with all of the terms and provisions set forth herein or in any
other Fundamental Document on its part to be observed or performed, and
immediately after such Borrowing no Event of Default or event which upon
notice or lapse of time or both would constitute an Event of Default shall
have occurred and be continuing.
(d) Margin Requirements. If the proceeds of any Loans are to be
used, directly or indirectly, to purchase or carry any margin stock or to
extend credit or refund indebtedness incurred for such purpose, the
Borrower shall furnish to the Administrative Agent an opinion of counsel
reasonably satisfactory to the Administrative Agent to the effect set forth
in paragraph 7 of Exhibit D-1 to this Agreement.
(e) Additional Documents. The Banks shall have received from
the Borrower on the date of each Borrowing such documents and information
as they may reasonably request relating to the satisfaction of such
conditions.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the matters
specified in paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Closing Date. The obligations of the Banks to make
Loans hereunder are subject to the following additional conditions
precedent:
(a) Closing Date. The Closing Date shall have occurred on or
before the 30th day following the Execution Date.
(b) Notes. On the Closing Date, each Bank shall have received a
duly executed Competitive Note and Revolving Credit Note complying with the
provisions of Section 2.08.
(c) Opinions of Counsel. On the Closing Date each Bank shall
have received the favorable written opinions of Xxxxxx, Xxxxx & Xxxxxxx
LLP, special counsel for the Borrower and the Guarantors and of J. Xxxxxxx
Xxxxx, Esq., Secretary and General Counsel of the Borrower, dated the
Closing Date, addressed to each Bank and satisfactory to Cravath, Swaine &
Xxxxx, counsel to the Administrative Agent, substantially in the forms of
Exhibits D-1 and D-2, respectively.
(d) Corporate Documents. On or before the Closing Date, each
Bank shall have received (I) a copy of the Certificate of Incorporation, as
amended, of each of the Borrower and each Guarantor, certified as of a
recent date by the Secretary of State of the state of incorporation of such
person; (ii) a certificate of such Secretary of State, dated as of a recent
date, as to the good standing of, and payment of taxes by, the Borrower and
each Guarantor, as applicable, and as to the charter documents of the
Borrower and each Guarantor, as applicable, on file in the office of each
such Secretary of State; (iii) a certificate of the Secretary of each of
the Borrower and each Guarantor, each dated the Closing Date and certifying
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(A) that attached thereto is a true and complete copy of the By-laws of the
Borrower or such Guarantor, as applicable, as in effect on the date of such
certification, (B) that attached thereto is a true and complete copy of
resolutions adopted by the Board of Directors of the Borrower or such
Guarantor, authorizing the execution, delivery and performance of the
Fundamental Documents to which it is a party, (c) that the Certificate of
Incorporation of the Borrower or such Guarantor, as applicable, has not
been amended since the date of the last amendment thereto indicated on the
applicable certificate of the Secretary of State furnished pursuant to
clause (ii) above and (D) as to the incumbency and specimen signature of
each officer of the Borrower or such Guarantor, as applicable, executing
the Fundamental Documents to which it is a party, or any other document
delivered in connection herewith or therewith, as the case may be, (each
such certificate to contain a certification by another officer of the
Borrower or such Guarantor, as applicable, as to the incumbency and
signature of the officer signing the certificate referred to in this clause
(iii)); and (iv) such other documents as any Bank or counsel for the
Administrative Agent may reasonably request.
(e) Required Consents and Approvals. Except as noted on
Schedule 4.02, all required consents and approvals shall have been obtained
with respect to the transactions contemplated hereby from all Governmental
Authorities with jurisdiction over the business and activities of the
Borrower and the Subsidiaries.
(f) Federal Reserve Regulations. The Administrative Agent shall
be satisfied that the provisions of Regulations G, T, U and X of the Board
will not be violated by the transactions contemplated hereby.
(g) Contribution Agreement. The Administrative Agent shall
have received the Contribution Agreement, duly executed by the Borrower and
each Guarantor.
(h) Fees and Expenses. All accrued but unpaid Facility Fees and
fees due to the Administrative Agent, all as contemplated by Section 2.07,
and all amounts referred to in Section 10.04 then due, shall have been or
shall be simultaneously paid in full.
(i) Existing Indebtedness. Concurrently with the transactions
contemplated hereby, on the Closing Date the Existing Revolving Credit
Agreement shall have been modified to provide for the reduction of the
Commitments of the Banks thereunder (as defined therein) to an amount not
greater than the amount of the Scheduled Loans outstanding thereunder at
such time and further reduction thereof by the amount of any payment or
prepayment of principal of such Scheduled Loans.
(j) Officer's Certificate. The Banks shall have received a
certificate of a Financial Officer dated the Closing Date certifying
compliance with Section 4.01(b) and (c) hereof.
(k) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent may reasonably
require.
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ARTICLE V
Affirmative Covenants
---------------------
The Borrower covenants and agrees with each Bank that, so long as
this Agreement shall remain in effect or the principal of or interest on
any Note or any other expenses or amounts payable hereunder shall be unpaid
or the Commitments are in effect, unless the Required Banks otherwise
consent in writing, it will, and it will cause each of its Subsidiaries to:
SECTION 5.01. Corporate Existence. Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its
corporate existence, material rights, licenses, permits and franchises;
provided that nothing in this Section 5.01 shall prevent the abandonment or
termination of the corporate existence, rights or franchises of any
Subsidiary or the Borrower if such abandonment or termination would not
have a material adverse effect upon the business, assets, liabilities,
financial condition, results of operations or business prospects of the
Borrower and its Subsidiaries taken as a whole or the ability of the
Borrower to perform its obligations hereunder or under any other
Fundamental Document.
SECTION 5.02. Maintenance of Property. At all times maintain
and preserve all property used or useful in working order and condition,
and from time to time make, or cause to be made, all needful and proper
repairs, renewals and replacements thereto, so that the business carried on
in connection therewith may be properly conducted at all times, except to
the extent that the failure to do so would not have a material adverse
effect upon the business, assets, liabilities, financial condition, results
of operations or prospects of the Borrower and its Subsidiaries taken as a
whole or on the ability of the Borrower or any Guarantor to perform its
obligations hereunder or under any other Fundamental Document.
SECTION 5.03. Insurance. (a) Keep its insurable properties
adequately insured at all times; (b) maintain such other insurance, to such
extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses; (c) maintain in full force and effect public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by the Borrower or any Subsidiary, as the
case may be, in such amount as the Borrower or such Subsidiary, as the case
may be, shall reasonably deem necessary; and (d) maintain such other
insurance as may be required by law. The Borrower and the Subsidiaries may
self-insure to the extent customary with companies in the same or similar
businesses.
SECTION 5.04. Obligations and Taxes. Pay all its indebtedness
and obligations promptly and in accordance with their terms except to the
133
extent that the failure to do so would not have a material adverse effect
upon the business, assets, liabilities, financial condition, results of
operations or prospects of the Borrower and its Subsidiaries taken as a
whole or on the ability of the Borrower or any Guarantor to perform its
obligations hereunder or under any other Fundamental Document and pay and
discharge promptly all taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits or in respect of its
property (and use its best efforts to do so), prior to the time penalties
would attach thereto, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a Lien or charge upon
such properties or any part thereof; provided, however, that none of the
Borrower or any of the Subsidiaries shall be required to pay and discharge
or to cause to be paid and discharged any such tax, assessment, charge,
levy or claim so long as the validity or amount thereof shall be contested
in good faith by appropriate actions or proceedings and the Borrower or
such Subsidiary, as the case may be, shall have made such reserve, or other
adequate provision, if any, as shall be required by generally accepted
accounting principles with respect to any such tax, assessment, charge,
levy or claim so contested.
SECTION 5.05. Financial Statements; Reports, etc. Furnish to
the Banks:
(a) As soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower, the Consolidated balance sheet
as of the end of such fiscal year of the Borrower and its Consolidated
Subsidiaries, the related Consolidated statements of income and the
Consolidated statements of cash flows for the year then ended of the
Borrower and its Consolidated Subsidiaries, the foregoing Consolidated
financial statements to be (x) examined by, and to carry the report
reasonably acceptable to the Banks of KPMG Peat Marwick or other
independent public accountants of similar nationally recognized standing
reasonably acceptable to the Banks, and to be in the form of the financial
statements included in the Borrower's annual report on Form 10K filed with
the Securities and Exchange Commission for the fiscal year ended December
31, 1996, and (y) accompanied by a certificate of said accountants stating
that in making the examination necessary for expressing their opinion on
such statements they have obtained no knowledge, of a financial or
accounting nature, of any violation of any of the terms or provisions of
this Agreement or any other Fundamental Document, or of the occurrence of
any condition or event which, with notice or lapse of time or both, would
constitute an Event of Default, or, if such accountants shall have obtained
knowledge of any such violation, condition or event, they shall specify in
such certificate all such violations, conditions and events, and the nature
thereof, it being understood that said accountants shall not be liable to
anyone for failure to obtain such knowledge. All such Consolidated
financial statements shall be compiled in reasonable detail in accordance
with generally accepted accounting principles applied on a consistent basis
throughout the periods reflected therein, except as stated therein, and
fairly present the financial position and results of operations and cash
flows of the Borrower and its Consolidated Subsidiaries for the respective
periods indicated.
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(b) As soon as available, but in any event within 60 days after
the end of each of the first three fiscal quarters of each fiscal year, an
unaudited Consolidated condensed balance sheet, and the related unaudited
Consolidated condensed statements of income for such quarter and for the
then elapsed portion of the fiscal year, and the Consolidated condensed
statements of cash flows of the Borrower and its Consolidated Subsidiaries
for the then-elapsed portion of the fiscal year, the foregoing Consolidated
condensed financial statements to be in reasonable detail (comparable to
the Consolidated condensed financial statements for the quarter ended June
30, 1997 heretofore delivered to the Banks) and stating (with respect to
the unaudited Consolidated condensed statements of income and cash flows)
in comparative form the figures as at the end of and for the comparable
periods of the preceding fiscal year and to be certified by a Financial
Officer of the Borrower in his capacity as such as being to the best of his
knowledge and belief correct and complete and as presenting fairly the
consolidated financial position and results of operations of the Borrower
and its Consolidated Subsidiaries in accordance with generally accepted
accounting principles (other than the omission of the notes to the
financial statements required by generally accepted accounting principles)
applied on a basis consistent with previous fiscal years, in each case
subject to normal year-end adjustments.
(c) Concurrently with (a) and (b) above, a certificate of a
Financial Officer of the Borrower, certifying in his capacity as such (i)
that to the best of his knowledge and belief no Event of Default, or event
which with notice or lapse of time or both would constitute such an Event
of Default or event has occurred, and, if so, specifying the nature and
extent thereof and specifying any corrective action taken or proposed to be
taken with respect thereto, (ii) that to the best of his knowledge and
belief the Borrower is in compliance with the covenants set forth in
Sections 6.09, 6.10 and 6.11, (iii) setting forth in reasonable detail
calculations demonstrating compliance with Sections 6.01(x), 6.02,
6.04(iii), and 6.06(c), and (iv) setting forth the calculation in
reasonable detail of the Consolidated Interest Coverage Ratio as at the end
of such fiscal quarter and for the period of four fiscal quarters then
ended treated as a single accounting period, and any change in pricing
anticipated to become effective pursuant to such notice.
(d) Promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available generally by the Borrower to its public security holders, of all
regular and periodic reports and all registration statements and
prospectuses, if any, filed by the Borrower with any securities exchange or
with the Securities and Exchange Commission, or any comparable foreign
bodies, and of all press releases and other statements made available
generally by any of them to the public concerning material developments in
the business of the Borrower.
(e) Promptly, from time to time, such other information
regarding the financial condition and business operations of the Borrower
and its Consolidated Subsidiaries as any Bank may reasonably request (with
a copy of any such written information provided to the Administrative
Agent).
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SECTION 5.06. Defaults and Other Notices. Give the
Administrative Agent prompt (but in any event not later than five Business
Days after an officer of the Borrower shall become aware of the occurrence
of such event) written notice of the following:
(a) any Event of Default and any event which with
notice or lapse of time or both would constitute an
Event of Default; and
(b) any development (other than those specified
above as to which the Administrative Agent has received
due notice) which has resulted in, or which the
Borrower reasonably believes will result in, a material
adverse change in the business, assets, liabilities or
financial condition of the Borrower and its
Consolidated Subsidiaries taken as a whole or the
ability of the Borrower to perform its obligations
hereunder.
SECTION 5.07. ERISA. (a) Comply in all material respects with
the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (I) as soon as possible, and in any event within 30
days after any officer of the Borrower or any of its ERISA Affiliates knows
or has reason to know that any Reportable Event with respect to any Plan
has occurred that alone or together with any other Reportable Event with
respect to the same or another Plan could reasonably be expected to result
in liability of the Company to the PBGC in an aggregate amount exceeding
$5,000,000, a statement of a Financial Officer setting forth details as to
such Reportable Event and the action that the Borrower proposes to take
with respect thereto, together with a copy of the notice of such Reportable
Event, if any, given to the PBGC, (ii) promptly after receipt thereof, a
copy of any notice the Borrower or any of its ERISA Affiliates may receive
from the PBGC relating to the intention of the PBGC to terminate any Plan
or Plans or to appoint a trustee to administer any such Plan, (iii) within
10 days after a filing with the PBGC pursuant to Section 412(n) of the Code
of a notice of failure to make a required installment or other payment with
respect to a Plan, a statement of a Financial Officer setting forth details
as to such failure and the action that the Borrower proposes to take with
respect thereto, together with a copy of such notice given to the PBGC and
(iv) promptly and in any event within 30 days after receipt thereof by the
Borrower or any of its ERISA Affiliates from the sponsor of a Multiemployer
Plan, a copy of each notice received by the Borrower or any ERISA Affiliate
of the Borrower concerning (A) the imposition of Withdrawal Liability by a
Multiemployer Plan in an amount exceeding $5,000,000 or (B) a determination
that a Multiemployer Plan is, or is expected to be, terminated or in
reorganization, both within the meaning of Title IV of ERISA, and which, in
each case, is expected to result in an increase in annual contributions of
the Borrower or any of its ERISA Affiliates to such Multiemployer Plan in
an amount exceeding $5,000,000.
SECTION 5.08. Access to Premises and Records. Maintain the
financial records of the Borrower and its Consolidated Subsidiaries in
accordance with generally accepted accounting principles and permit
136
representatives of the Banks to have access, at all reasonable times upon
reasonable notice, to the Borrower and any of its Subsidiaries and their
properties and to make such excerpts from such financial books and records
as such representatives reasonably request and to discuss the business,
operations, properties and financial and other condition of the Borrower
and such Subsidiaries with officers and employees of the Borrower and such
Subsidiaries and the independent certified public accountants of the
Borrower; provided that no Bank shall purchase, sell or otherwise acquire
or dispose of any interest in a security of the Borrower in the public
markets on the basis of any material nonpublic information so obtained.
SECTION 5.09. Compliance with Laws, etc. The Borrower and its
Subsidiaries shall comply in all material respects with the requirements of
all applicable laws, rules, regulations and orders of any Governmental
Authority, except to the extent that the failure to do so would not have a
material adverse effect upon the business, assets, liabilities, financial
condition, results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower or any
Guarantor to perform its obligations hereunder or under any other
Fundamental Document. If any authorization or approval or other action by,
or notice to or filing with, any Governmental Authority is required for the
performance by the Borrower of this Agreement or any other Fundamental
Document, the Borrower will promptly obtain such approval or make such
notice or filing and shall provide satisfactory evidence thereof to the
Administrative Agent.
SECTION 5.10. Security Interests. If any property of the
Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, is subjected to any Lien not permitted by Section 6.01, the
Borrower will make, or will cause to be made, effective provision whereby
the Obligations shall be secured equally and ratably with all other
obligations secured by such Lien, and, if such provision is not made, an
equitable lien, so equally and ratably securing the Obligations, shall
exist on such property to the full extent permitted under applicable law;
it being understood that the Borrower's compliance with the provisions of
this Section 5.10 shall not, in any way, constitute a cure by the Borrower
or a waiver by the Banks of the Borrower's failure to perform or observe
any of the covenants or agreements in Section 6.01.
SECTION 5.11. Subsidiary Guarantors. Promptly upon any person
incorporated in the United States becoming a Subsidiary that is a Material
Subsidiary, or upon any Subsidiary incorporated in the United States
becoming a Material Subsidiary, the Borrower agrees that it or the other
direct owner of such Subsidiary shall cause such Subsidiary to sign such an
instrument substantially in the form of Exhibit C hereto, under which such
Subsidiary shall become a party to the Contribution Agreement as a
Guarantor and assume all obligations of a Guarantor under the Credit
Agreement, all in a manner satisfactory to the Administrative Agent and its
counsel; provided, however, the Borrower shall be permitted at any time to
cause any of its Subsidiaries not then subject to this Section 5.11 to
become a party to this Agreement and the Contribution Agreement in
accordance with the requirements hereof.
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SECTION 5.12. Environmental Laws. (a) Promptly notify the
Administrative Agent upon any Senior Officer of the Borrower becoming aware
of any violation or noncompliance with, or liability under any
Environmental Laws which, when taken together with all other pending
violations would reasonably be expected to be materially adverse to the
Borrower and the Consolidated Subsidiaries taken as a whole, and promptly
furnish to the Administrative Agent all notices of any nature which the
Borrower or any Consolidated Subsidiaries may receive from any Governmental
Authority or other Person with respect to any violation, or potential
violation or noncompliance with, or liability or potential liability under
any Environmental Laws which, in any case or when taken together with all
such other notices, would reasonably be expected to have a material adverse
effect on the Borrower and the Consolidated Subsidiaries taken as a whole.
(b) Comply with and use reasonable efforts to ensure compliance
by all tenants and subtenants with all Environmental Laws, and obtain and
comply in all material respects with and maintain and use reasonable
efforts to ensure that all tenants and subtenants obtain and comply in all
material respects with and maintain any and all licenses, approvals,
registrations or permits required by Environmental Laws.
(c) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under all
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities.
(d) Defend, indemnify and hold harmless the Administrative Agent
and the Banks, and their respective employees, agents, officers and
directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of, or in
any way related to the violation of or noncompliance with any Environmental
Laws, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney and
consultant fees, investigation and laboratory fees, court costs and
litigation expenses, but excluding therefrom all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses
arising out of or resulting from (i) the gross negligence or wilful
misconduct of such indemnified party or (ii) any acts or omissions of any
indemnified party occurring after such indemnified party is in possession
of, or controls the operation of, any property or asset.
SECTION 5.13. Existing Credit Agreements. Repay each Scheduled
Loan in full at the end of the Interest Period applicable thereto, and
terminate the Existing Revolving Credit Agreement at such time as all
Scheduled Loans outstanding thereunder have been paid.
ARTICLE VI
Negative Covenants
------------------
138
The Borrower covenants and agrees with the Banks that, so long as
this Agreement shall remain in effect or the principal of or interest on
any Note or any other expenses or amount payable hereunder shall be unpaid
or the Commitments are in effect, unless the Required Banks otherwise
consent in writing, it will not, and it will not cause or permit any of its
Subsidiaries, directly or indirectly, to:
SECTION 6.01. Liens. Incur, create or permit to exist any Lien
on (or sale and leaseback transaction with respect to) any property, assets
or stock owned or hereafter acquired by the Borrower or any of its
Subsidiaries, other than:
(i) Liens for taxes, assessments or governmental
charges or levies not yet delinquent or thereafter
payable without penalty for nonpayment or (if
foreclosure, distraint, sale or other similar
proceedings shall not have been commenced) being
contested in good faith and by appropriate actions or
proceedings promptly initiated and diligently
conducted, if such reserve or other appropriate
provision, if any, as shall be required by generally
accepted accounting principles shall have been made
therefor;
(ii) Liens of carriers, warehousemen, mechanics
and materialmen incurred in the ordinary course of
business for sums not yet due or being contested in
good faith and by appropriate actions or proceedings
promptly initiated and diligently conducted, if such
reserve or other appropriate provision, if any, as
shall be required by generally accepted accounting
principles shall have been made therefor;
(iii) Liens incurred or deposits made in the
ordinary course of business, in connection with
workers' compensation, unemployment insurance and other
social security, or to secure the performance of bids,
tenders, leases, contracts (other than the repayment of
borrowed money), statutory obligations, surety, customs
and appeal bonds;
(iv) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions,\
waivers, restrictions on the use of real property or
minor irregularities of title to real property (and
with respect to leasehold encumbrances or interests,
mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and
arising by, through or under or asserted by a landlord
or owner of the leased property, with or without
consent of the lessee), none of which materially
impairs the use of any parcel of real property material
to the operation of the business of the owner thereof
139
or the value of such property for the purpose of such
business;
(v) Liens securing purchase money Indebtedness of
the Borrower and its Subsidiaries; provided that (A)
such Liens shall not encumber any property other than
the property acquired, (B) the Indebtedness secured
thereby does not exceed the purchase price of such
property, and (C) such transaction does not otherwise
violate this Agreement;
(vi) Liens upon assets of a corporation existing
at the time such corporation is merged into or
consolidated with the Borrower or a Subsidiary or at
the time of its acquisition by the Borrower or a
Subsidiary or its becoming a Subsidiary; provided that
such Lien does not spread to any other asset at any
time owned by the Borrower or any Subsidiary;
(vii) Liens in existence on the date hereof which
are listed in Schedule 6.01 (which Schedule includes
all such Liens (other than Liens of the types described
in paragraphs (i) through (v) above) securing
obligations in excess of $500,000);
(viii) Liens arising out of the renewal or
refunding of any Indebtedness of the Borrower and its
Subsidiaries secured by Liens permitted by the
foregoing; provided that the aggregate principal amount
of such Indebtedness is not increased and is not
secured by additional assets and the Indebtedness
secured by the Lien is permitted under this Agreement;
(ix) Liens in connection with attachments,
judgments or awards as to which an appeal or other
appropriate proceedings for contest or review are
promptly commenced and diligently pursued in good faith
(and as to which foreclosure and other enforcement
proceedings shall not have been commenced (unless fully
bonded or otherwise effectively stayed)); and
(x) other Liens on assets with an aggregate book
value for all such assets subject to Liens, which when
added to the aggregate book value of assets subject to
Sale and Leaseback Transactions permitted under
Section 6.06(c), do not at the time in effect exceed
the lesser of (a) $40,000,000 and (b) 10% of
Consolidated Net Worth.
SECTION 6.02. Indebtedness. Permit any of the foreign
Subsidiaries or any domestic Subsidiaries which are not Guarantors
hereunder to incur, create, assume, become or be liable in any manner with
respect to, or permit any of such Subsidiaries to permit or suffer to
140
exist, any Indebtedness, unless after giving effect to such Indebtedness
the total Indebtedness of all such Subsidiaries is no greater than the
lesser of (a) $60,000,000 and (b) 15% of Consolidated Net Worth; provided,
however, this Section 6.02 shall not apply to any Subsidiary which becomes
a Guarantor hereunder in accordance with Section 5.11 hereof.
SECTION 6.03. Mergers, Consolidations, Sales of Assets and
Acquisitions. Neither the Borrower nor any Subsidiary (in one transaction
or series of transactions) will wind up, liquidate or dissolve its affairs,
or enter into any transaction of merger or consolidation, or sell or
otherwise dispose of all or any part of its property or assets, except:
(a) mergers between the Borrower and a Subsidiary
or between Subsidiaries;
(b) sales of inventory, marketable securities,
receivables owed to a foreign subsidiary and
receivables of the Borrower or any Subsidiary from
export sales, in each case in the ordinary course of
business;
(c) sales permitted pursuant to Section 6.06;
(d) subject to Section 6.03(e) below, any merger
(other than as described in (a) above), consolidation,
dissolution or liquidation; provided, however, that (I)
immediately prior to and on a Pro Forma Basis after
giving effect to such transaction no Default or Event
of Default has occurred or is continuing, (ii) if such
transaction involves a Person other than the Borrower
and its Subsidiaries, the Administrative Agent shall
promptly receive a certificate of a Financial Officer
of the Borrower confirming that such transaction
complies with the requirements set forth in this
section and (iii) if such transaction involves the
Borrower, the Borrower is the surviving entity;
(e) a disposition of less than substantially all
of the assets of the Borrower and its Subsidiaries,
taken as a whole, (i) for consideration which
represents fair market value (as reasonably determined
in good faith by the Borrower's Board of Directors) or,
at a price determined by the Board of Directors of the
Borrower to be in the best interests of the Borrower
under circumstances where the Board deems a sale on
terms other than fair market value to be in the best
interest of the Borrower, (ii) immediately prior to and
on a Pro Forma Basis after giving effect thereto, no
Event of Default or Default shall have occurred and be
continuing and (iii) if the transaction involves
consideration of $20,000,000 or more, the
Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
141
confirming that such transaction complies with the
requirements set forth in this section; and
(f) acquisitions of an interest in any business
from any Person (whether pursuant to a merger, an
acquisition of stock, assets, a business unit or
otherwise); provided that (i) immediately prior to and
on a Pro Forma Basis after giving effect thereto, no
Event of Default or Default shall have occurred and be
continuing and (ii) if the transaction involves
consideration equal to or in excess of $10,000,000, the
Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section.
SECTION 6.04. Change of Business. Engage in any business
activities other than those related or incidental to its present business
activities, namely, the manufacture and wholesale distribution of (i)
dental supplies and equipment, (ii) medical/industrial supplies and
equipment and (iii) other healthcare products; provided that (x) the
business activities, described in clause (iii) shall not at any time
represent more than 20% of the Consolidated Net Income of the Borrower and
the Subsidiaries as of the end of the then most recently completed fiscal
year of the Borrower, and (y) the assets of the business activities
described in clause (iii) shall not at any time represent more than 20% of
the Consolidated assets of the Borrower and the Subsidiaries.
SECTION 6.05. Transactions with Affiliates. Enter into any
transactions with or provide any employee benefits to any Affiliate of the
Borrower or any Subsidiary except (a) in the ordinary course of business
and upon fair and reasonable terms no less favorable than the Borrower or
the Subsidiary concerned could, in the good faith judgment of senior
management of the Borrower, obtain or could become entitled to in an arm's-
length transaction with a person or entity which was not an Affiliate of
the Borrower or such Subsidiary, (b) transactions involving the Borrower
and one or more Subsidiaries exclusively, (c) transactions involving two or
more Subsidiaries exclusively, (d) transactions with the ESOP or other
similar foreign employee stock ownership plans of Subsidiaries of the
Borrower which do not materially and adversely affect the interests of the
Administrative Agent or the Banks under the Fundamental Documents, and (e)
transactions otherwise expressly permitted hereunder.
SECTION 6.06. Sale and Leaseback. Enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer
any property, whether real or personal, and used or useful in its business,
whether now owned or hereafter acquired, if the Borrower or any of its
Subsidiaries at the time of such sale or disposition intends to lease or
otherwise acquire the right to use or possess (except by purchase) such
property or like property for a substantially similar purpose (a "Sale and
Leaseback Transaction") except:
(a) the Des Plaines Lease;
142
(b) for any such Sale and Leaseback Transaction in
which the property is sold by the Borrower to a
Subsidiary or by a Subsidiary to the Borrower or
another Subsidiary; or
(c) the Borrower or any Subsidiary may enter into
any Sale and Leaseback Transaction if (i) at the time
of such Sale and Leaseback Transaction no Default or
Event of Default shall have occurred and be continuing,
(ii) the proceeds from the sale of the subject property
shall be equal to not less than 80% of its fair market
value (as reasonably determined by the Borrower's Board
of Directors) and (iii) after giving effect to such
Sale and Leaseback Transaction, the aggregate book
value of all assets of the Borrower and the
Subsidiaries subject to Sale and Leaseback Transactions
when added to the aggregate book value of assets
subject to Liens permitted under Section 6.01(a) and
excluding those described in paragraphs (a) and (b)
above, shall not at any time exceed the lesser of
(a) $40,000,000 and (b) 10% of Consolidated Net Worth.
SECTION 6.07. Dividends by Subsidiaries. Create, incur, assume
or permit to exist any agreement or instrument which has the effect of
restricting or prohibiting the power, authority or legal right of such
Subsidiary to declare or pay any dividend or other distribution other than,
prior to the Closing Date, the Existing Credit Agreements.
SECTION 6.08. Amendments to Certain Documents. Amend, modify or
otherwise change (a) any covenant or event of default in any material
indenture or other material agreement or material instrument relating to
any Indebtedness or (b) any of its constitutive documents, in either case
in any manner materially adverse to the interests of the Administrative
Agent or the Banks under the Fundamental Documents.
SECTION 6.09. Minimum Consolidated Net Worth. Permit
Consolidated Net Worth at any time to be less than (x) $300,000,000 plus
(y) 25% of aggregate Consolidated Net Income for each full fiscal quarter
for which such Consolidated Net Income is positive that shall have been
completed during the period from the Closing Date to the date of
determination.
SECTION 6.10. Interest Coverage. Permit the Consolidated
Interest Coverage Ratio at the end of any fiscal quarter to be less than
3.5 to 1.0 for the period of the four consecutive fiscal quarters then
ended treated as a single accounting period.
SECTION 6.11. Debt Ratio. Permit the Debt Ratio at any time to
be greater than .5 to 1.0.
SECTION 6.12. Fiscal Year. Change its fiscal year or modify or
change accounting treatments or reporting practices except as otherwise
permitted or required by generally accepted accounting principles.
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ARTICLE VII
Events of Default
-----------------
In the case of the happening of any of the following events
(hereinafter called "Events of Default"):
(a) any representation or warranty made by the
Borrower or any of the Guarantors in connection with
this Agreement or any other Fundamental Document or
with the execution and delivery of the Notes or the
borrowings hereunder or any statement or representation
made in any report, certificate, financial statement or
other instrument furnished by the Borrower or any of
the Guarantors to the Banks or the Administrative Agent
pursuant to this Agreement or any other Fundamental
Document shall prove to have been false or misleading
in any material respect when made or delivered;
(b) default shall be made in the payment of the
principal of or interest on any Note or of any fees or
other amounts payable by the Borrower hereunder, when
and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or
otherwise, and, in the case of interest, such default
shall continue unremedied for five Business Days;
(c) default shall be made with respect to the
payment of any amount due under any agreement or other
evidence of Indebtedness for borrowed money (other than
the Notes) of the Borrower or any of the Subsidiaries
in an aggregate outstanding principal amount of
$10,000,000 or more; or any other default shall be made
with respect to any such Indebtedness and such
Indebtedness shall have been accelerated so that any
payment in respect of such Indebtedness shall be or
become due prior to its maturity or scheduled due date;
(d) default shall be made in the due observance or
performance of any covenant, condition or agreement on
the part of the Borrower on its own behalf or on behalf
of any of the Subsidiaries or any of the Guarantors
contained in Article VI or Article VIII hereof;
provided that in the case of a default under
Section 6.01, resulting solely from incurrence of a
prohibited obligation by a Subsidiary without the
approval or knowledge of any officer of the Borrower,
such default shall continue unremedied for 30 days;
(e) the guarantee under Article VIII hereof shall
(i) not remain in full force and effect, be declared
144
null and void or shall not be enforceable against the
Guarantors in accordance with its terms and such
guarantee shall not be reinstated to full force and
effect and enforceability against the Guarantors in
accordance with its terms within 30 days or (ii) be
disaffirmed or repudiated by the Borrower or any such
Guarantor;
(f) default shall be made in the due observance or
performance of any other covenant, condition or
agreement to be observed or performed by the Borrower
on its own behalf or on behalf of any of the
Subsidiaries or any of the Guarantors pursuant to the
terms hereof or of any other Fundamental Document and
such default shall continue unremedied for a period
equal to the sum of 30 days after such failure shall
have first occurred plus an additional three Business
Days after any officer of the Borrower shall become
aware of such failure, but in no event shall such
period extend for more than 30 days after any officer
of the Borrower shall become aware of such failure;
(g) the Borrower or any Material Subsidiary shall
(i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United
States Code or any other Federal or state bankruptcy,
insolvency or similar law, (ii) consent to the
institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing
of any such petition, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian,
sequestrator or similar official for the Borrower or
any such Material Subsidiary or for a substantial part
of its property, (iv) file an answer admitting the
material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its
debts as they become due or (vii) take corporate action
for the purpose of effecting any of the foregoing;
(h) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed in a court
of competent jurisdiction seeking (i) relief in
respect of the Borrower or any Material Subsidiary, or
of a substantial part of its property, under Title 11
of the United States Code or any other Federal or
state bankruptcy, insolvency or similar law, (ii) the
appointment of a receiver, trustee, custodian,
sequestrator or similar official for the Borrower or
such Material Subsidiary or for a substantial part of
its property or (iii) the winding-up or liquidation of
the Borrower or such Material Subsidiary; and such
145
proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering
any of the foregoing shall continue unstayed and in
effect for 30 days;
(i) a final judgment for the payment of money
(which alone, or when aggregated with all other such
unpaid judgments to the extent not fully covered by
insurance from financially sound and reputable insurers
against the Borrower and its Subsidiaries at such time,
is for $10,000,000 or more) shall be rendered against
the Borrower or any of the Subsidiaries and the same
shall remain undischarged for a period of 60 days or
any action is taken by the judgment creditor to levy
thereon;
(j) a Reportable Event or Reportable Events, or a
failure to make a required payment (within the meaning
of Section 412(n)(1)(A) of the Code) shall have
occurred with respect to any Plan or Plans that
reasonably could be expected to result in liability of
the Borrower to the PBGC or to a Plan in an aggregate
amount exceeding $10,000,000 and, within 30 days after
the reporting of any such Reportable Event to the
Administrative Agent or after the receipt by the
Administrative Agent of the statement required pursuant
to Section 5.07(b)(iii) hereof, the Administrative
Agent shall have notified the Borrower in writing that
(i) the Required Banks have made a determination that,
on the basis of such Reportable Event or Reportable
Events or the receipt of such statement, there are
reasonable grounds (A) for the termination of such Plan
or Plans by PBGC, (B) for the appointment by the
appropriate United States District Court of a trustee
to administer such Plan or Plans or (C) for the
imposition of a Lien in favor of a Plan and (ii) as a
result thereof an Event of Default exists hereunder; or
a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans; or
the PBGC shall institute proceedings to terminate any
Plan or Plans;
(k) (i) the Borrower or any of its ERISA
Affiliates shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan, (ii) the Borrower
or any such ERISA Affiliate does not have reasonable
grounds for contesting such Withdrawal Liability and is
not in fact contesting such Withdrawal Liability in a
timely and appropriate manner, and (iii) the amount of
such Withdrawal Liability specified in such notice,
when aggregated with all other amounts required to be
paid to Multiemployer Plans in connection with
146
Withdrawal Liabilities (determined as of the date or
dates of such notification), exceeds $10,000,000 or
requires payments exceeding $10,000,000 in any year;
(l) the Borrower or any of its ERISA Affiliates
shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the
meaning of Title IV of ERISA, if solely as a result of
such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates
to all Multiemployer Plans that are then in
reorganization or have been or are being terminated
have been or will be increased over the amounts
required to be contributed to such Multiemployer Plans
for their most recently completed plan years by an
amount exceeding $10,000,000 in any year;
(m) (i) a person or two or more persons acting in
concert (excluding the ESOP and any other person who
holds 5% or more of the outstanding shares of voting
stock of the Borrower as of the Closing Date) shall
acquire beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of more than
50% of the outstanding shares of voting stock of the
Borrower, or (ii) the individuals who, as of such
Closing Date, are members of the Board of Directors of
the Borrower (the "Incumbent Board") shall cease to
constitute at least a majority of the Board of
Directors of the Borrower; provided, however, that if
the election, or nomination for election of any new
director was approved by a vote of at least a majority
of the Incumbent Board or any nominating committee
thereof, such new director shall, for purposes hereof,
be considered as a member of the Incumbent Board; and
then, and in every such event and at any time
thereafter during the continuance of such event, the
Administrative Agent may (unless, in the case of each
Event of Default other than that specified in paragraph
(b) above, the Required Banks shall have waived such
Event of Default in writing, and, in the case of an
Event of Default specified in paragraph (b) above, each
of the Banks shall have waived such Event of Default in
writing), and, upon direction of the Required Banks,
will by written notice to the Borrower, take any of the
following actions, at the same or different times:
(i) terminate the Commitments and (ii) declare the
Notes to be forthwith due and payable, whereupon the
Notes and all other fees and amounts owing hereunder
shall become forthwith due and payable, both as to
principal and interest, without presentment, demand,
protest or any other notice of any kind, all of which
147
are hereby expressly waived, anything contained herein
or in the Notes to the contrary notwithstanding.
Notwithstanding the foregoing, if an Event of Default
specified in paragraph (g) or (h) above occurs with
respect to the Borrower or a Guarantor, the Notes shall
become immediately due and payable, both as to
principal and interest, without any action by the
Administrative Agent and without presentment, demand,
protest or any other notice of any kind, all of which
are hereby expressly waived, anything contained herein
or in the Notes to the contrary notwithstanding.
ARTICLE VIII
Guarantee
---------
SECTION 8.01. Guarantee. (a) Each Guarantor hereby, jointly
and severally, unconditionally and irrevocably guarantees to the Banks and
the Administrative Agent the due and punctual payment by and performance of
the Obligations (including interest accruing on and after the filing of any
petition in bankruptcy or reorganization of the applicable obligor whether
or not post-filing interest is allowed in such proceeding) by the Borrower.
(b) Each Guarantor waives notice of acceptance of this guarantee
and also waives presentation to, demand of payment from and protest to the
Borrower of any of the Obligations, as well as notice of protest for
nonpayment and all other formalities. The obligations of each Guarantor
hereunder shall not be affected by (i) the failure of the Administrative
Agent or the Banks to assert any claim or demand or to enforce any right or
remedy against the Borrower under this Agreement or otherwise; (ii) any
extension or renewal of any of the Obligations; (iii) any rescission,
waiver, amendment or modification of any of the terms or provisions of this
Agreement or any other agreement or instrument; (iv) the taking or release
of any security held by the Banks or the Administrative Agent for the
performance of any of the Obligations; (v) the failure of the
Administrative Agent or the Banks to exercise any right or remedy against
the Borrower or any other guarantor of the Obligations; (vi) any stay in
bankruptcy or insolvency proceedings of the Borrower or any other Person;
or (vii) the release or substitution of any other Guarantor.
(c) Each Guarantor agrees that this guarantee constitutes a
guarantee of payment when due and not of collection and waives any right to
require that any resort be had by the Banks or the Administrative Agent to
any security held for payment of the Obligations or to any balance of any
deposit account or credit on the books of the Banks or the Administrative
Agent in favor of the Borrower or any other person.
SECTION 8.02. No Impairment of Guaranty. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to
148
any defense, setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations
or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired
or otherwise affected by the failure of the Banks or the Administrative
Agent to assert any claim or demand or to enforce any remedy under this
Agreement or any other agreement or instrument, by any waiver or
modification of any thereof by the Banks or the Administrative Agent, by
any default, failure or delay, wilful or otherwise, in the performance of
the Obligations or by any other act or omission or delay to do any other
act which might in any manner or to any extent vary the risk of any
Guarantor or which would otherwise operate as a discharge of a guarantor as
a matter of law.
SECTION 8.03. Continuation and Reinstatement, etc. Each
Guarantor further agrees that this guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time any payment on any
Obligation is rescinded or must otherwise be restored by the Banks upon the
bankruptcy or reorganization of the Borrower or otherwise.
SECTION 8.04. Payment, etc. (a) In furtherance of the
foregoing and not in limitation of any other right which the Banks or the
Administrative Agent may have at law or in equity against any Guarantor by
virtue hereof, upon the failure of the Borrower to pay or perform any
Obligation when and as the same shall become due, whether at Termination,
by acceleration, after notice of prepayment or otherwise, each Guarantor
hereby promises to and will, upon receipt of written demand by the Banks or
the Administrative Agent, forthwith pay, or cause to be paid, in cash, to
the Administrative Agent, an amount equal to the sum of (i) the unpaid
principal amount of such Obligations, (ii) accrued and unpaid interest on
such Obligations and (iii) all other unpaid Obligations of the Borrower to
the Administrative Agent and the Banks.
(b) Each Guarantor agrees that to the fullest extent permitted
by applicable law, all rights against the Borrower arising as a result of
any payment by any Guarantor under this guarantee by way of right of
subrogation or otherwise shall in all respects be junior and subordinate in
right of payment to the prior indefeasible payment in full of all the
Obligations to the Administrative Agent for the benefit of the Banks. If
after the Borrower has failed to pay any Obligation when due, any amount
shall be paid to any Guarantor for the account of the Borrower, such amount
shall be held in trust for the benefit of the Administrative Agent and
shall forthwith be paid to the Administrative Agent on behalf of the Banks
to be credited and applied to the Obligations when due and payable.
(c) Each Guarantor waives notice of and hereby consents to any
agreements or arrangements whatsoever by the Banks or the Administrative
Agent with the Borrower, or anyone else, including agreements and
arrangements for payment, extension, subordination, composition,
arrangement, discharge or release of the whole or any part of the
Obligations, or for the discharge or surrender of any or all security, or
for compromise, whether by way of acceptance of part payment or otherwise,
and the same shall in no way impair such Guarantor's liability hereunder.
149
Nothing shall discharge or satisfy the liability of any Guarantor hereunder
except the full performance and payment of the Obligations.
SECTION 8.05. Benefit to Guarantors. Each Guarantor
acknowledges that it has realized a direct economic benefit as a result of
the refinancing of the loans outstanding under the Existing Credit
Agreements of the Borrower and the availability to it of the proceeds of
Loans that have been or may in the future be made hereunder.
ARTICLE IX
Administrative Agent
--------------------
SECTION 9.01. Appointment of Administrative Agent. In order to
expedite the various transactions contemplated by this Agreement, The Chase
Manhattan Bank is hereby appointed to act as Administrative Agent on behalf
of the Banks. Each Bank irrevocably authorizes and directs the
Administrative Agent to take such action on behalf of such Bank under the
terms and provisions of this Agreement and to exercise such powers
hereunder as are specifically delegated to or required of the
Administrative Agent by the terms and provisions hereof, together with such
powers as are reasonably incidental thereto.
SECTION 9.02. Exculpation. Neither the Administrative Agent nor
the Documentation Agent, nor any of their directors, officers, employees or
agents shall be liable as such for any action taken or omitted by any of
them hereunder except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein, or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrower or the Guarantors of any of the
terms, conditions, covenants or agreements of this Agreement. Neither the
Administrative Agent nor the Documentation Agent shall be responsible to
the Banks for the due execution, genuineness, validity, enforceability or
effectiveness of this Agreement or any other Fundamental Document, the
Notes or any other instrument to which reference is made herein. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof until written notice of transfer shall have
been filed with it. The Administrative Agent shall promptly notify the
Borrower of any such notice received by such Administrative Agent. The
Administrative Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by
the Banks, and, except as otherwise specifically provided herein, such
instructions and any action taken or failure to act pursuant thereto shall
be binding on all of the Banks. The Administrative Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any paper or
document believed by it to be genuine and correct and to have been signed
or sent by the proper person or persons. Neither the Administrative Agent
nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure or delay in
performance or breach by any Bank of any of its obligations hereunder or to
any Bank on account of the failure or delay in performance or breach by any
150
other Bank, or the Borrower, of any of their respective obligations
hereunder or in connection herewith.
SECTION 9.03. Consultation with Counsel. The Administrative
Agent may execute any and all duties hereunder by or through agents or
employees and shall be entitled to advice of legal counsel selected by it
with respect to all matters arising hereunder and shall not be liable for
any action taken or suffered in good faith by it in accordance with the
advice of such counsel.
SECTION 9.04. The Administrative Agent, Individually. With
respect to the Loans made by it and the Notes issued to it, the
Administrative Agent in its individual capacity and not as Administrative
Agent shall have the same rights and powers hereunder and under any other
agreement as any other Bank and may exercise the same as though it were not
the Administrative Agent, and the Administrative Agent and its affiliates
may accept deposits from, lend money to and generally engage in any kind of
business with the Borrower or any of the Subsidiaries or other Affiliate of
the Borrower or any such Subsidiary as if it were not the Administrative
Agent.
SECTION 9.05. Reimbursement and Indemnification. Each Bank
agrees (i) to reimburse the Administrative Agent in the amount of such
Bank's proportionate share of any expenses incurred for the benefit of the
Banks, including counsel fees and compensation of agents and employees paid
for services rendered on behalf of the Banks, not reimbursed by the
Borrower, and (ii) to indemnify and hold harmless the Administrative Agent
and any of its directors, officers, employees or agents, on demand, in the
amount of its proportionate share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against it or any of them
in any way relating to or arising out of this Agreement, or under the other
Fundamental Documents or any action taken or omitted by it or any of them
under this Agreement or under the other Fundamental Documents, to the
extent not reimbursed by the Borrower; provided, however, that no Bank
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or wilful misconduct of
the Administrative Agent or any of its directors, officers, employees or
agents.
SECTION 9.06. Resignation. Subject to the appointment and
acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by notifying the Banks and the
Borrower. Upon any such resignation, and with the consent of the Borrower
(which shall be deemed to be granted if an Event of Default shall have
occurred and be continuing), the Required Banks shall have the right to
appoint a successor Administrative Agent. If no successor Administrative
Agent shall have been so appointed by such Banks and shall have accepted
such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Banks, appoint a successor Administrative Agent
151
having a combined capital and surplus of at least $300,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a
successor bank, such successor shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under any other
documents executed in connection herewith. After the Administrative
Agent's resignation hereunder, the provisions of this Article IX shall
continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered or mailed
(or in the case of telegraphic communication, if by telegram, delivered to
the telegraph company and, if by telex, telecopy, graphic scanning or other
telegraphic communications equipment, delivered by such equipment)
addressed, if to the Borrower at 000 Xxxx Xxxxxxx Xxxxxx, Xxxx,
Xxxxxxxxxxxx 00000, to the attention of J. Xxxxxxx Xxxxx, Secretary, if to
the Administrative Agent, to it at 1 Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 to the attention of Xxxxxx Xxxxxxx and to it at 9
Xxxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, XXXXXX X00XX to the attention of
Xxxxxx Xxxxxx, with a copy to Xxxx Xxx Xxx, at The Chase Manhattan Bank,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and if to a Bank, to it at its
address set forth on the signature pages of this Agreement. All notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be effective when received.
SECTION 10.02. No Waivers; Amendments. No failure or delay of
the Administrative Agent or any Bank in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent and the Banks
hereunder are cumulative and not exclusive of any rights or remedies which
the Administrative Agent or any such Bank would otherwise have. No notice
or demand on the Borrower shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances; provided that
the foregoing shall not limit the right of the Borrower to any notice
expressly provided for herein. No modification, amendment or waiver of any
provision of this Agreement or any of the Notes nor consent to any
departure of the Borrower therefrom shall in any event be effective unless
the same shall be in writing and signed by the Required Banks and then such
waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Any such modification, amendment, waiver or
consent, so given, shall be effective to bind all the Banks; provided, that
no such modification, amendment, waiver or consent may be made which will
152
(i) reduce or increase the amount or alter the term of any Commitment of
any Bank hereunder without the written consent of such Bank; (ii) extend
the time for payment of principal of or interest on any Note, or reduce the
principal amount or change the method of calculation provided for herein
for determining the rate of interest on any Note, without the written
consent of the holder of such Note; (iii) vary the amount or time for
payment of fees payable to any Bank hereunder without the written consent
of such Bank; (iv) change the definition of Required Banks set forth in
Article I, or amend this Section 10.02 or Section 2.18 without the written
consent of all the Banks; or (v) give any Note preference over any other
Note in payment of principal or interest.
SECTION 10.03. Applicable Law; Submission to Jurisdiction;
Service of Process; Waiver of Jury Trial. (a) This Agreement and the
Notes shall be construed in accordance with and governed by the laws of the
State of New York applicable to agreements made and to be performed wholly
in the State of New York.
(b) Each of the Borrower and each Guarantor hereby irrevocably
submits itself to the jurisdiction of the Supreme Court of the State of New
York, New York County, and to the jurisdiction of the United States
District Court for the Southern District of New York, for the purpose of
any suit, action or other proceeding arising out of or relating to this
Agreement, any other Fundamental Document or any related document or any of
the transactions contemplated hereby or thereby, and hereby waives, and
agrees not to assert, by way of motion, as a defense, or otherwise, in any
suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of the above-named courts for any reason whatsoever, that
such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper or that this
Agreement or any other Fundamental Documents or, to the full extent
permitted by applicable law, any subject matter of any thereof may not be
enforced in or by such courts. Neither this paragraph (b) nor paragraph
(c) below shall restrict the Administrative Agent or any Bank from bringing
suit or instituting other judicial proceedings against the Borrower or any
Guarantor or any of their assets in any court or jurisdiction not referred
to herein or therein.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notice in Section 10.01. Nothing in
this Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by law.
(d) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, ANY OTHER FUNDAMENTAL DOCUMENT AND ANY OF THE OTHER DOCUMENTS OR
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN.
(e) Except as prohibited by law, each party hereto hereby waives
any right it may have to claim or recover in any litigation referred to in
paragraph (d) of this Section 10.03 any special, exemplary, punitive,
indirect (including loss of profits) or consequential damages or any
153
damages other than, or in addition to, actual damages; provided that if a
party hereto shall obtain a final, nonappealable judgment that another
party shall have intentionally and knowingly breached its obligations under
this Agreement with an intention of injuring the claimant party, the
claimant party may then seek consequential damages from such breaching
party for its losses suffered as a result of such intentional breach.
(f) Each party hereto (i) certifies that neither any
representative, agent nor attorney of any Bank has represented, expressly
or otherwise, that such Bank would not, in the event of litigation, seek to
enforce the foregoing waivers and (ii) acknowledges that it has been
induced to enter into this Agreement by, among other things, the mutual
waivers and certifications herein.
SECTION 10.04. Expenses; Documentary Taxes. The Borrower agrees
to pay all reasonable out-of-pocket expenses (i) incurred by the
Administrative Agent in connection with the preparation, execution and
delivery, waiver or modification and administration of this Agreement, any
other Fundamental Document or any related documents or in connection with
the performance of due diligence by the Administrative Agent or the
syndication of the Loans (whether or not the transactions hereby
contemplated shall be consummated), and (ii) incurred by the Administrative
Agent in connection with the making of the Loans hereunder, or incurred by
the Administrative Agent or the Banks in connection with the enforcement of
this Agreement or the Loans made or the Notes issued hereunder or any other
Fundamental Documents and with respect to any action which may be
instituted by any person against the Banks or the Administrative Agent in
respect of the foregoing (but not with respect to any act of gross
negligence or wilful misconduct of the Administrative Agent or any Bank),
or as a result of any transaction, action or nonaction arising from the
foregoing, including, but not limited to, the fees and disbursements of
Cravath, Swaine & Xxxxx, counsel to the Administrative Agent. The Borrower
agrees that it shall indemnify the Banks and the Administrative Agent from
and hold them harmless against any documentary taxes, assessments or
charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement, the Fundamental Documents or any of the Notes.
The obligations of the Borrower under this Section 10.04 shall survive the
termination of this Agreement and the Commitments and/or the payment of the
Notes.
SECTION 10.05. Indemnity. Further, by the execution hereof, the
Borrower agrees to indemnify and hold harmless the Administrative Agent and
the Banks and their directors, officers, employees and agents (each an
"Indemnified Party") from and against any and all expenses, including
reasonable fees and disbursements of counsel, losses, claims, damages and
liabilities arising out of any claim, litigation, investigation or
proceeding (whether or not the Administrative Agent or any Bank is a party
thereto) relating to the financing contemplated hereby and transactions
related thereto, but excluding therefrom all expenses, losses, claims,
damages, and liabilities arising out of or resulting from the gross
negligence or wilful misconduct of any Indemnified Party. The obligations
of the Borrower under this Section 10.05 shall survive the termination of
this Agreement and the Commitments and/or payments of the Loans.
154
SECTION 10.06. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Guarantors, the
Administrative Agent, the Documentation Agent and the Banks and their
respective successors and assigns. Neither the Borrower nor the Guarantors
may assign or transfer any of their rights or obligations hereunder without
the written consent of the Required Banks.
SECTION 10.07. Survival of Agreements, Representations and
Warranties, etc. All warranties, representations and covenants made by the
Borrower or the Guarantors herein or in any certificate or other instrument
delivered by it or on its behalf in connection with this Agreement shall be
considered to have been relied upon by the Banks and shall survive the
making of the Loans herein contemplated and the issuance and delivery to
the Banks of the Notes regardless of any investigation made by the Banks or
on their behalf and shall continue in full force and effect so long as any
amount due or to become due hereunder is outstanding and unpaid and so long
as the Commitments have not been terminated. All statements in any such
certificate or other instrument shall constitute representations and
warranties by the Borrower hereunder.
SECTION 10.08. Severability. In case any one or more of the
provisions contained in this Agreement or the Notes should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10.09. Cover Page and Section Headings. The cover page
and section headings used herein are for convenience of reference only, are
not part of this Agreement and are not to affect the construction of or be
taken into consideration in interpreting this Agreement.
SECTION 10.10. Counterparts. This Agreement may be signed in
any number of counterparts with the effect as if the signatures thereto
were upon the same instrument. This Agreement shall become effective when
copies hereof which, when taken together, bear the signatures of each of
the parties hereto shall have been received by the Administrative Agent.
SECTION 10.11. Confidentiality. Each Bank agrees (which
agreement shall survive the termination of this Agreement) that financial
information, information from the Borrower's books and records, information
concerning the Borrower's trade secrets and patents and any other
information received from the Borrower hereunder and designated in writing
as confidential shall be treated as confidential by such Bank, and each
Bank agrees to use its best efforts to ensure that such information is not
published, disclosed or otherwise divulged to anyone other than employees
or officers of such Bank and its counsel and agents with a need to know
such information and who have been informed of the confidentiality
hereunder (as reasonably determined by such Bank); provided that it is
understood that the foregoing shall not apply to:
155
(i) disclosure made with the prior written
authorization of the Borrower;
(ii) disclosure of information(other than that
received from the Borrower prior to or under this
Agreement) already known by, or in the possession of
such Bank without restrictions on the disclosure
thereof at the time such information is supplied to
such Bank by the Borrower hereunder;
(iii) disclosure of information which is required
by applicable law or to a governmental agency having
supervisory authority over any party hereto;
(iv) disclosure of information in connection with
any suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with
the transactions contemplated hereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial
institution) agrees to maintain any such information to
be received in accordance with the provisions of this
Section 10.11;
(vi) disclosure by any party hereto to any other
party hereto or their counsel or agents with a need to
know such information (as reasonably determined by such
party);
(vii) disclosure by any party hereto to any
entity, or to any subsidiary of such an entity, which
owns, directly or indirectly, more than 50% of the
voting stock of such party, or to any subsidiary of
such an entity; or
(viii) disclosure of information that prior to
such disclosure has been public knowledge through no
violation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
DENTSPLY INTERNATIONAL INC.,
By /s/ Xxxxxx X. Xxxxx
156
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President/CFO
CERAMCO INC.,
By /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
CERAMCO MANUFACTURING CO.,
By /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
EUREKA X-RAY TUBE CORP.,
By /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
MIDWEST DENTAL PRODUCTS
CORPORATION,
By /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
NEW IMAGE INDUSTRIES, INC.
157
By /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President/CFO
XXXXXX & XXXXXXXX COMPANY,
By /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President/CFO
TULSA DENTAL PRODUCTS INC.,
By /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
158
DENTSPLY RESEARCH & DEVELOPMENT
CORP.,
By /s/ Xxxx X. Xxxxxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: V.P. & Secretary
159
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
By /s/ Xxxx Xxx Xxx
--------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
ABN AMRO BANK N.V., individually
and as Documentation Agent,
By /s/ Xxx X. Xxxxxxxx
--------------------------
Name: Xxx X. Xxxxxxxx
Title: Group Vice President and
Director
By /s/ Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address: Xxx XXX Xxxxx,
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
MELLON BANK N.A.,
By /s/ Xxx Xxxxxx
--------------------------
Name: Xxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx Xx.,
0xx Xxxxx
000
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
THE FIRST NATIONAL BANK OF
MARYLAND,
By /s/ Xxxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Address: 00 X. Xxxxxx Xx.
Xxx 0000
Xxxx, XX 00000
Telecopier No.: 000-000-0000
XXXXXX TRUST AND SAVINGS BANK,
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx-00X
Xxxxxxx, XX 00000
Telecopier No.: 000-000-0000
CORESTATES BANK, N.A.,
By /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
Address: 000 Xxxx Xx.
Xxxxxxx, XX 00000
Telecopier No.: 000-000-0000
161
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
By /s/ Xxxx X. Xxxxxx
--------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
MARINE MIDLAND BANK,
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: 000-000-0000
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SpA,
By /s/ Xxxx Xxxxxx
--------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
By /s/ Xxxxxx Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
162
CONFORMED COPY
FACILITY B
5-YEAR
============================================================
COMPETITIVE ADVANCE, REVOLVING CREDIT
AND GUARANTY AGREEMENT
dated as of
October 23, 1997
among
DENTSPLY INTERNATIONAL INC., as Borrower,
THE GUARANTORS NAMED HEREIN,
THE BANKS NAMED HEREIN,
THE CHASE MANHATTAN BANK, as Administrative Agent
and
ABN AMRO BANK N.V., as Documentation Agent
163
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions. . . . . . . . . . . . . . . 2
SECTION 1.02. Accounting Terms and Determinations. . . 20
SECTION 1.03. Exchange Rates . . . . . . . . . . . . . 20
ARTICLE II
Loans
SECTION 2.01. Commitments. . . . . . . . . . . . . . . 21
SECTION 2.02. Loans. . . . . . . . . . . . . . . . . . 21
SECTION 2.03. Use of Proceeds. . . . . . . . . . . . . 24
SECTION 2.04. Competitive Bid Procedure. . . . . . . . 24
SECTION 2.05. Revolving Credit Borrowing
Procedure . . . . . . . . . . . . . . . 27
SECTION 2.06. Letters of Credit. . . . . . . . . . . . 27
SECTION 2.07. Refinancings . . . . . . . . . . . . . . 33
SECTION 2.08. Fees . . . . . . . . . . . . . . . . . . 34
SECTION 2.09. Notes; Repayment of Loans. . . . . . . . 35
SECTION 2.10. Interest on Loans. . . . . . . . . . . . 36
SECTION 2.11. Interest on Overdue Amounts. . . . . . . 37
SECTION 2.12. Alternate Rate of Interest . . . . . . . 37
SECTION 2.13. Termination, Reduction, Increase
and Extension of Commitments. . . . . . 38
SECTION 2.14. Prepayment of Loans. . . . . . . . . . . 41
SECTION 2.15. Eurodollar Reserve Costs . . . . . . . . 42
SECTION 2.16. Reserve Requirements; Change
in Circumstances. . . . . . . . . . . . 42
SECTION 2.17. Change in Legality . . . . . . . . . . . 44
SECTION 2.18. Indemnity. . . . . . . . . . . . . . . . 45
SECTION 2.19. Pro Rata Treatment . . . . . . . . . . . 46
SECTION 2.20. Right of Setoff. . . . . . . . . . . . . 47
SECTION 2.21. Sharing of Setoffs . . . . . . . . . . . 47
SECTION 2.22. Payments . . . . . . . . . . . . . . . . 48
SECTION 2.23. United States Withholding. . . . . . . . 49
SECTION 2.24. Participations; Assignments. . . . . . . 51
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Corporate Powers . . . . . 55
SECTION 3.02. Authorization. . . . . . . . . . . . . . 55
SECTION 3.03. Enforceability . . . . . . . . . . . . . 56
SECTION 3.04. Governmental Approvals . . . . . . . . . 56
SECTION 3.05. Financial Statements and Condition . . . 56
164
SECTION 3.06. No Material Adverse Change . . . . . . . 58
SECTION 3.07. Title to Properties. . . . . . . . . . . 58
SECTION 3.08. Litigation . . . . . . . . . . . . . . . 58
SECTION 3.09. Tax Returns. . . . . . . . . . . . . . . 59
SECTION 3.10. Agreements . . . . . . . . . . . . . . . 59
SECTION 3.11. Employee Benefit Plans . . . . . . . . . 60
SECTION 3.12. Investment Company Act; Public
Utility Holding Company Act;
Federal Power Act . . . . . . . . . . . 61
SECTION 3.13. Federal Reserve Regulations. . . . . . . 61
SECTION 3.14. Defaults; Compliance with Laws . . . . . 61
SECTION 3.15. Use of Proceeds. . . . . . . . . . . . . 62
SECTION 3.16. Affiliated Companies . . . . . . . . . . 62
SECTION 3.17. Environmental Liabilities. . . . . . . . 62
SECTION 3.18. Disclosure . . . . . . . . . . . . . . . 63
SECTION 3.19. Insurance. . . . . . . . . . . . . . . . 64
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Borrowings . . . . . . . . . . . . . 64
SECTION 4.02. Closing Date . . . . . . . . . . . . . . 65
ARTICLE V
Affirmative Covenants
SECTION 5.01. Corporate Existence. . . . . . . . . . . 67
SECTION 5.02. Maintenance of Property. . . . . . . . . 68
SECTION 5.03. Insurance. . . . . . . . . . . . . . . . 68
SECTION 5.04. Obligations and Taxes. . . . . . . . . . 68
SECTION 5.05. Financial Statements; Reports, etc.. . . 69
SECTION 5.06. Defaults and Other Notices . . . . . . . 71
SECTION 5.07. ERISA. . . . . . . . . . . . . . . . . . 71
SECTION 5.08. Access to Premises and Records . . . . . 72
SECTION 5.09. Compliance with Laws, etc. . . . . . . . 72
SECTION 5.10. Security Interests . . . . . . . . . . . 73
SECTION 5.11. Subsidiary Guarantors. . . . . . . . . . 73
SECTION 5.12. Environmental Laws . . . . . . . . . . . 73
SECTION 5.13. Existing Credit Agreements . . . . . . . 74
ARTICLE VI
Negative Covenants
SECTION 6.01. Liens. . . . . . . . . . . . . . . . . . 75
SECTION 6.02. Indebtedness . . . . . . . . . . . . . . 77
SECTION 6.03. Mergers, Consolidations, Sales
of Assets and Acquisitions. . . . . . . 77
SECTION 6.04. Change of Business . . . . . . . . . . . 78
SECTION 6.05. Transactions with Affiliates . . . . . . 78
SECTION 6.06. Sale and Leaseback . . . . . . . . . . . 79
SECTION 6.07. Dividends by Subsidiaries. . . . . . . . 79
165
SECTION 6.08. Amendments to Certain Documents. . . . . 80
SECTION 6.09. Minimum Consolidated Net Worth . . . . . 80
SECTION 6.10. Interest Coverage. . . . . . . . . . . . 80
SECTION 6.11. Debt Ratio . . . . . . . . . . . . . . . 80
SECTION 6.12. Fiscal Year. . . . . . . . . . . . . . . 80
ARTICLE VII
Events of Default
ARTICLE VIII
Guarantee
SECTION 8.01. Guarantee. . . . . . . . . . . . . . . . 85
SECTION 8.02. No Impairment of Guaranty. . . . . . . . 85
SECTION 8.03. Continuation and Reinstatement, etc. . . 86
SECTION 8.04. Payment, etc . . . . . . . . . . . . . . 86
SECTION 8.05. Benefit to Guarantors. . . . . . . . . . 87
ARTICLE IX
Administrative Agent
SECTION 9.01. Appointment of Administrative Agent. . . 87
SECTION 9.02. Exculpation. . . . . . . . . . . . . . . 87
SECTION 9.03. Consultation with Counsel. . . . . . . . 88
SECTION 9.04. The Administrative Agent, Individually . 88
SECTION 9.05. Reimbursement and Indemnification. . . . 89
SECTION 9.06. Resignation. . . . . . . . . . . . . . . 89
ARTICLE X
Miscellaneous
SECTION 10.01. Notices . . . . . . . . . . . . . . . . 90
SECTION 10.02. No Waivers; Amendments. . . . . . . . . 90
SECTION 10.03. Applicable Law; Submission
to Jurisdiction; Service of
Process; Waiver of Jury Trial. . . . . 91
SECTION 10.04. Expenses; Documentary Taxes . . . . . . 92
SECTION 10.05. Indemnity . . . . . . . . . . . . . . . 93
SECTION 10.06. Successors and Assigns. . . . . . . . . 93
SECTION 10.07. Survival of Agreements,
Representations and Warranties, etc. . 93
SECTION 10.08. Severability. . . . . . . . . . . . . . 94
SECTION 10.09. Cover Page and Section Headings . . . . 94
SECTION 10.10. Counterparts. . . . . . . . . . . . . . 94
SECTION 10.11. Confidentiality . . . . . . . . . . . . 94
SECTION 10.12. Conversion of Currencies. . . . . . . . 95
SECTION 10.13. European Monetary Union . . . . . . . . 96
166
167
Contents, p. 6
Exhibits
A-1 Form of Competitive Bid Request
A-2 Form of Notice of Competitive Bid Request
A-3 Form of Competitive Bid
A-4 Form of Competitive Bid Accept/Reject Letter
A-5 Form of Revolving Credit Borrowing Request
B-1 Form of Competitive Note
B-2 Form of Revolving Credit Note
C Form of Contribution Agreement
D-1 Form of Opinion of Xxxxxx, Xxxxx & Xxxxxxx
D-2 Form of Opinion of J. Xxxxxxx Xxxxx, Esq.
E Form of Assignment and Acceptance
Schedules
1.01 Guarantors
2.01 Commitments
2.02 Scheduled Loans
3.16 Affiliates
3.17 Environmental Liabilities
4.02 Consents
6.01 Liens
168
5-YEAR COMPETITIVE ADVANCE, REVOLVING
CREDIT AND GUARANTY AGREEMENT dated as of
October 23, 1997, among DENTSPLY
INTERNATIONAL INC., a Delaware corporation
(the "Borrower"), the Guarantors named
herein, the Banks named herein (individually
a "Bank" and collectively the "Banks"), THE
CHASE MANHATTAN BANK, as Administrative Agent
for the Banks (the "Administrative Agent"),
and ABN AMRO BANK N.V., as Documentation
Agent for the Banks (the "Documentation
Agent").
INTRODUCTORY STATEMENT
All terms not otherwise defined herein are defined
in Article I hereof.
The Borrower has requested that the Banks extend
credit to the Borrower in order to enable the Borrower to
borrow on a standby revolving credit basis (a) principal
amount not in excess of $175,000,000 at any time outstanding
and (b) to obtain Letters of Credit.
The Borrower has also requested that the Banks
provide a procedure pursuant to which the Borrower may
invite the Banks to bid on an uncommitted basis on
short-term borrowings by the Borrower.
The proceeds of all such borrowings and all
Letters of Credit are to be used (a) to refinance
outstanding Indebtedness of the Borrower under the
Borrower's Existing Credit Agreements and (b) for general
working capital and corporate purposes, including
acquisitions in the health care products industry.
To provide assurance for the repayment of the
Loans and all related interest, fees, charges, expenses,
reimbursement obligations and other amounts payable with
respect thereto, the Guarantors will guarantee the
Obligations pursuant to Article VIII hereof.
Accordingly, the Borrower, the Guarantors, the
Banks and the Administrative Agent agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this
Agreement, the following words and terms shall have the
meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised
of ABR Loans.
169
"ABR Loan" shall mean any Revolving Credit Loan
bearing interest at a rate determined by reference to the
Alternate Base Rate in accordance with the provisions of
Article II.
"Affiliate" shall mean, with respect to the person
in question, (a) any person (including any member of the
immediate family of any such natural person) which (i)
directly or indirectly beneficially owns or controls 10% or
more of the total voting power of shares of capital stock
having the right to vote for directors under ordinary
circumstances (if such person is a corporation), (ii) is a
general partner (if such person is a partnership) or
(iii)is otherwise empowered, by contract, voting trust or
otherwise, to direct the business or affairs of such person,
(b) any person controlling, controlled by or under common
control with any such person (within the meaning of Rulea405
under the Securities Act of 1933), and (c) any director,
general partner or executive officer of any such person.
"Administrative Agent" shall mean The Chase
Manhattan Bank, in its capacity as agent for the Banks
hereunder and not in its individual capacity as a Bank, or
such successor Administrative Agent as may be appointed
pursuant to Section 9.06.
"Agreement" shall mean the $175,000,000, 5-Year
Competitive Advance, Revolving Credit and Guaranty Agreement
dated as of October 23, 1997, among DENTSPLY International
Inc., as Borrower, the Guarantors named therein, the Banks
named therein, The Chase Manhattan Bank, as Administrative
Agent, and ABN Amro Bank N.V., as Documentation Agent, as
the same may be amended, modified or supplemented from time
to time.
"Alternate Base Rate" shall mean for any day, a
rate per annum (rounded upwards, if not already a whole
multiple of 1/16 of 1%, to the next higher 1/16 of 1%) equal
to the greatest of (a) the Prime Rate in effect on such day,
(b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect for such day
plus 1/2 of 1%. For purposes hereof, the term "Prime Rate"
shall mean the rate per annum announced by The Chase
Manhattan Bank from time to time as its prime rate in effect
at its principal office in The City of New York; each change
in the Prime Rate shall be effective on the date such change
is announced as effective. "Base CD Rate" shall mean the
sum of (x) the product of (i) the Average Weekly Three-Month
Secondary CD Rate and (ii) Statutory Reserves plus (y) the
Assessment Rate. "Average Weekly Three-Month Secondary CD
Rate" shall mean the secondary market rate ("Secondary CD
Rate") for three-month certificates of deposit (secondary
market) of major United States money market banks for the
most recent weekly period ending Friday reported in the
Federal Reserve Statistical release entitled "Weekly Summary
of Lending and Credit Measures (Averages of daily figures)"
or any successor publication released during the week for
170
which the Secondary CD Rate is being determined. The
Secondary CD Rate so reported shall be in effect, for the
purpose of this definition, for each day of the week during
which the release date of such publication occurs. If such
publication or a substitute containing the foregoing rate
information is not published by the Federal Reserve Board
for any week, such average rate shall be determined by the
Administrative Agent on the first Business Day of the week
succeeding such week for which such rate information is not
published on the basis of bids quoted to the Administrative
Agent by three New York City negotiable certificate of
deposit dealers of recognized standing for secondary market
morning offerings of negotiable certificates of deposit of
major United States money market banks with maturities of
three months. Any change in the Alternate Base Rate due to
a change in the Average Weekly Three-Month Secondary CD Rate
shall be effective on the effective date of such change in
the Average Weekly Three-Month Secondary CD Rate. "Federal
Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average
of the quotations for the day of such transactions received
by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it. Any change in the
Alternate Base Rate due to a change in the Federal Funds
Effective Rate shall be effective on the effective date of
such change in the Federal Funds Effective Rate. If for any
reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable to ascertain both the Base CD Rate and the
Federal Funds Effective Rate for any reason, including the
inability or failure of the Administrative Agent to obtain
sufficient bids or publications in accordance with the terms
hereof, the Alternate Base Rate shall be the Prime Rate
until the circumstances giving rise to such inability no
longer exist.
"Alternate Currency" means British Pounds
Sterling, Swiss Francs, Deutsche Marks and any other
currency requested by the Borrower and approved by each Bank
that is freely tradeable and exchangeable into Dollars in
the London market and for which an Exchange Rate can be
determined by reference to the Reuters World Currency Page
or another publicly available service for displaying
exchange rates.
"Applicable Commitment Percentage" means, with
respect to any Bank, the percentage of the total Commitments
represented by such Bank's Commitment. If the Commitments
have been terminated or expired, the Applicable Commitment
Percentages shall be determined based upon the Commitments
most recently in effect, giving effect to any assignments.
171
"Applicable Percentage" shall mean on any date,
with respect to the Facility Fee or the Loans comprising any
LIBOR Revolving Credit Borrowing, as the case may be, the
applicable percentage set forth in the table below based
upon the Consolidated Interest Coverage Ratio of the
Borrower for the four fiscal quarters immediately preceding
such date treated as a single accounting period (determined
in accordance with Section 2.10(e)):
FACILITY FEE/LIBOR BORROWING APPLICABLE PERCENTAGE TABLE
If the Applicable Applicable Applicable
Consolidated Interest Percentage Percentage
Coverage Ratio is: Facility Fee LIBOR Borrowing
Greater than or
equal to 12.0:1.0 .1000% .1500%
Less than 12.0:1.0
but greater than
or equal to 7.5:1.0 .1250% .1750%
Less than 7.5:1.0
but greater than
or equal to 5.5:1.0 .1500% .2500%
Less than 5.5:1.0
but greater than
or equal to 4.0:1.0 .1750% .3250%
Less than 4.0:1.0 .2000% .4250%
"Assessment Rate" shall mean for any date the
annual rate (rounded upwards, if not already a whole
multiple of 1/100 of 1%, to the next higher 1/100 of 1%)
most recently estimated by the Administrative Agent as the
then current net annual assessment rate that will be
employed in determining amounts payable by the
Administrative Agent to the Federal Deposit Insurance
Corporation ("FDIC") (or any successor) for insurance by the
FDIC (or such successor) of time deposits made in dollars at
its domestic offices.
"Assignment and Acceptance" shall mean an
agreement in the form of Exhibit E hereto entered into
pursuant to Section 2.24 executed by the assignor, assignee
and other parties as contemplated thereby.
"Availability Period" means the period from and
including the Effective Date to but excluding the earlier of
the Maturity Date and the date of termination of the
Commitments.
"Bank" and "Banks" shall mean the financial
institutions listed on Schedule 2.01 and any assignee of a
Bank pursuant to Section 2.24(b) or (c).
172
"Board" shall mean the Board of Governors of the
Federal Reserve System of the United States.
"Borrowing" shall mean a group of Loans of a
single Interest Rate Type made by the Banks (or in the case
of a Competitive Borrowing, by the Bank or Banks whose
Competitive Bids have been accepted pursuant to
Section 2.04) on a single date and as to which a single
Interest Period is in effect.
"Business Day" shall mean any day not a Saturday,
Sunday or legal holiday in the State of New York or the
Commonwealth of Pennsylvania on which banks and the Federal
Reserve Bank of New York are open for business in New York
City; provided, however, that when used in connection with a
LIBOR Loan the term "Business Day" shall also exclude any
day on which banks are not open for dealings in dollar
deposits in the London interbank market.
"Calculation Date" means the last Business Day of
each calendar quarter.
"Capitalized Lease Obligations" shall mean any
obligation of a Person as lessee of any property (real,
personal or mixed), which, in accordance with generally
accepted accounting principles, is or should be accounted
for as a capital lease on the balance sheet of such Person.
"Closing Date" shall mean the date of the first
Borrowing hereunder.
"Code" shall mean the Internal Revenue Code of
1986, as the same shall be amended from time to time.
"Commitment" shall mean, with respect to each
Bank, the commitment of such Bank hereunder as initially set
forth on Schedule 2.01 as such Bank's Commitment may be
permanently terminated, reduced, increased or extended from
time to time pursuant to Section 2.13. Subject to
Section 2.13, the Commitments shall automatically and
permanently terminate on the Maturity Date.
"Competitive Bid" shall mean an offer by a Bank to
make a Competitive Loan pursuant to Section 2.04.
"Competitive Bid Accept/Reject Letter" shall mean
a notification made by the Borrower pursuant to Section 2.04(d) in the form
of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any
Competitive Bid made by a Bank pursuant to Section 2.04(b),
(a) in the case of a LIBOR Loan, the Margin and (b) in the
case of a Fixed Rate Loan, the fixed rate of interest
offered by the Bank making such Competitive Bid.
"Competitive Bid Request" shall mean a request
made pursuant to Section 2.04 in the form of Exhibit A-1.
173
"Competitive Borrowing" shall mean a borrowing
consisting of a Competitive Loan or concurrent Competitive
Loans from the Bank or Banks whose Competitive Bids for such
Borrowing have been accepted by the Borrower under the
bidding procedure described in Section 2.04.
"Competitive Loan" shall mean a Loan from a Bank
to the Borrower pursuant to the bidding procedure described
in Section 2.04. Each Competitive Loan shall be a LIBOR
Competitive Loan or a Fixed Rate Loan.
"Competitive Loan Exposure" means, with respect to
any Bank at any time, the aggregate principal amount of the
outstanding Competitive Loans of such Bank.
"Competitive Note" shall mean a promissory note of
the Borrower in the form of Exhibit B-1 executed and
delivered as provided in Section 2.09.
"Consolidated" shall mean, as applied to any
financial or accounting term, such term determined on a
consolidated basis in accordance with generally accepted
accounting principles (except as otherwise required herein)
for the Borrower and each Subsidiary which is a Consolidated
Subsidiary of the Borrower.
"Consolidated EBITDA" shall mean for any period
"Income from operations" as set forth in the DENTSPLY
International Inc. Consolidated Statements of Income, plus
depreciation and amortization (to the extent previously
deducted), determined in accordance with generally accepted
accounting principles and in a manner consistent with the
accounting principles used to prepare the audited DENTSPLY
International Inc. Consolidated Statements of Income for the
year ended December 31, 1996, and delivered to the
Administrative Agent; provided that there shall be excluded:
(a) the income (or loss) from operations of any person,
accrued prior to the date it becomes a Subsidiary or is
merged into or consolidated with the person whose income is
being determined or a subsidiary of such person; and
(b) the income (or loss) from operations of any
person (other than a Subsidiary) in which the person whose
operating income is being determined or any subsidiary of
such person has an ownership interest, except to the extent
that any such income has actually been received by such
person in the form of cash dividends or similar
distributions.
"Consolidated Interest Coverage Ratio" shall mean,
in respect of any fiscal period of the Borrower,
(a) Consolidated EBITDA divided by (b) Consolidated Interest
Expense.
"Consolidated Interest Expense" shall mean, for
any fiscal period of the Borrower, without duplication of
expense among fiscal periods (a) the aggregate amount
174
determined on a Consolidated basis of (i) all interest on
Indebtedness of the Borrower and its Consolidated
Subsidiaries accrued during such period, (ii) all rentals
imputed as interest accrued under Capitalized Lease
Obligations during such period by such person and (iii) all
amortization of discount and expense relating to
Indebtedness of the Borrower and its Consolidated
Subsidiaries which amortization was accounted for during
such period, (b) adjusted downward for capital gains and
upward for capital losses on maturing U.S. Treasury
obligations and (c) adjusted downward for interest income
(to the extent not previously excluded), as determined in
accordance with generally accepted accounting principles.
"Consolidated Net Income" shall mean the net
income (or net loss) of the Borrower and its Consolidated
Subsidiaries for the period in question (taken as a whole),
as determined in accordance with generally accepted
accounting principles; provided that there shall be
excluded:
(a) the net income (or net loss) of any person,
accrued prior to the date it becomes a Subsidiary or is
merged into or consolidated with the person whose net income
is being determined or a subsidiary of such person; and
(b) the net income (or net loss) of any person
(other than a Subsidiary) in which the person whose net
income is being determined or any subsidiary of such person
has an ownership interest, except to the extent that any
such income has actually been received by such person in the
form of cash dividends or similar distributions.
"Consolidated Net Worth" shall mean, as at any
date of determination, the sum of the capital stock (less
treasury stock) and additional paid-in capital plus retained
earnings (or minus accumulated deficit) of the Borrower and
its Consolidated Subsidiaries on a Consolidated basis.
"Consolidated Subsidiary" means, in the case of
the Borrower at any date, any Subsidiary or other entity the
accounts of which are Consolidated with those of the
Borrower in the Consolidated financial statements of the
Borrower as of such date.
"Consolidated Total Capitalization" shall mean the
sum of (a) Consolidated Total Indebtedness and (b) Consolidated Net Worth.
"Consolidated Total Indebtedness" shall mean the
Consolidated Indebtedness of the Borrower and its
Consolidated Subsidiaries.
"Contribution Agreement" shall mean a Contribution
Agreement among the Borrower and the Guarantors
substantially in the form of Exhibit C hereto.
"Credit Exposure" means, in respect of any Bank,
175
the sum of such Bank's Revolving Credit Exposure and its
Competitive Loan Exposure.
"Debt Ratio" shall mean the ratio of Consolidated
Total Indebtedness to Consolidated Total Capitalization.
"Default" shall mean an Event of Default or any
event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.
"Des Plaines Lease" shall mean the Amended and
Restated Sale and Leaseback Agreement, dated as of Augusta1,
1991 between XxXxxxxxx Partners I as Buyer and Midwest
Dental Products Corporation, as Seller.
"Dollar Equivalent" means (a) as to any Loan
denominated in Dollars, the principal amount thereof, and
(b) as to any Loan denominated in an Alternate Currency, the
Dollar Equivalent of the principal amount thereof, determined by the
Administrative Agent pursuant to Section 1.03(a) using the Exchange Rate
with respect to such Alternate Currency at the time in effect.
"Dollars", "dollars" and the symbol "$" shall mean
the lawful currency of the United States of America.
"Effective Date" shall mean the date on which the
conditions to borrowing set forth in Sections 4.01 and 4.02
are first satisfied.
"Environmental Laws" shall mean all statutes,
ordinances, orders, rules and regulations relating to
environmental matters, including those relating to fines,
orders, injunctions, penalties, damages, contribution, cost
recovery compensation, losses or injuries resulting from the
release or threatened release of Hazardous Materials and to
the generation, use, storage, transportation, or disposal of
Hazardous Materials or in any manner applicable to the
Borrower or any of the Subsidiaries or any of their
respective properties, including the Comprehensive
Environmental Response, Compensation, and Liability Act
(42 U.S.C. ss.9601 et seq.), the Hazardous Material
Transportation Act (49 U.S.C. ss.1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. ss.6901 et seq.),
the Federal Water Pollution Control Act (33U.S.C. ss.1251 et
seq.), the Clean Air Act (42 U.S.C. ss.7401 et seq.), the
Toxic Substances Control Act (15 U.S.C. ss.2601 et seq.), the
Occupational Safety and Health Act (29 U.S.C. ss.651 et seq.)
and the Emergency Planning and Community Right-to-Know Act
(42 U.S.C. ss.11001 et seq.), each as amended or supplemented, and any
analogous current or future Federal, state or local statutes and
regulations promulgated pursuant thereto.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as the same may from time to time be
amended.
"ERISA Affiliate" shall mean with respect to the
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Borrower, any trade or business (whether or not incorporated) which is a
member of a group of which the Borrower is a member and which is under
common control within the meaning of Section 414 of the Code.
"ESOP" shall mean the DENTSPLY Employee Stock
Ownership Plan effective as of December 1, 1982 and restated
as of January 1, 1991.
"Event of Default" shall mean any of the events
described in clauses (a) through (m) of Article VII.
"Exchange Rate" means, on any day, with respect to
any Alternate Currency, the rate at which such Alternate
Currency may be exchanged into Dollars, as set forth at
approximately 11:00 a.m., London time, on such date on the
Reuters World Currency Page for such Alternate Currency. In
the event that such rate does not appear on any Reuters
World Currency Page, the Exchange Rate shall be determined
by reference to the applicable Bloomberg System page, or, in
the event that such rate does not appear on such page, such
other publicly available service for displaying exchange
rates as may be agreed upon by the Administrative Agent and
the Borrower, or, in the absence of such agreement, such
Exchange Rate shall instead be the spot rate of exchange of
the Administrative Agent in the market where its foreign
currency exchange operations in respect of such Alternate
Currency are then being conducted, at or about 11:00 a.m.,
London time, on such date for the purchase of Dollars for
delivery twoaBusiness Days later; provided that if at the
time of any such determination, for any reason, no such spot
rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such
rate, and such determination shall be conclusive absent
manifest error.
"Execution Date" shall mean the date of this
Agreement.
"Existing Credit Agreements" shall mean the
Existing Revolving Credit Agreement and the Existing Term
Loan Agreement.
"Existing Revolving Credit Agreement" shall mean
the $175,000,000 Competitive Advance, Revolving Credit and
Guaranty Agreement dated as of November 15, 1993, as
amended, among the Borrower, the guarantors and banks party
thereto and The Chase Manhattan Bank, as Agent.
"Existing Term Loan Agreement" shall mean the
$60,000,000 Multi-Currency Term Loan Agreement dated as of
May 12, 1995, among the Borrower, the banks party thereto,
and ABN Amro Bank N.V., as Agent.
"Facility A Credit Agreement" shall mean the
$125,000,000, 364-Day Competitive Advance, Revolving Credit
and Guaranty Agreement dated as of the date hereof among the
Borrower, the guarantors and the banks party thereto, The
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Chase Manhattan Bank, as administrative agent, and ABN Amro
Bank N.V. as documentation agent, as amended, modified or
supplemented from time to time.
"Facility Fee" shall have the meaning given such
term in Section 2.08 hereof.
"Financial Officer" of any person shall mean its
Senior Vice President-Chief Financial Officer, Treasurer or
Controller.
"Fixed Rate Borrowing" shall mean a Borrowing
comprised of Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan
bearing interest at a fixed percentage rate per annum
(expressed in the form of a decimal to no more than four
decimal places) specified by the Bank making such Loan in
its Competitive Bid.
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"Fundamental Documents" shall mean this Agreement,
the Contribution Agreement, the Competitive Notes, the
Letters of Credit and the Revolving Credit Notes.
"Governmental Authority" shall mean any Federal,
state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, or any court, in each case whether of
the United States or foreign.
"Guarantors" shall mean all Material Subsidiaries
which are incorporated in the United States, all of which
are listed on Schedule 1.01, and any other Subsidiaries of
the Borrower which become Guarantors pursuant to Section
5.11.
"Guaranty", "Guaranteed" or to "Guarantee" as
applied to any obligation shall mean and include (a) a
guaranty (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), directly or indirectly, in
a manner, of any part (to the extent of such part) or all of such
obligation and (b) an agreement, direct or indirect, contingent or
otherwise, and whether or not constituting a guaranty, the intention or
practical effect of which is to assure the payment or performance (or
payment of damages or compensation in the event of nonperformance) of any
part (to the extent of such part) or all of such obligation whether by (i)
the purchase of securities or obligations, (ii) the purchase, sale or lease
(as lessee or lessor) of property or
the purchase or sale of services primarily for the purpose of enabling the
obligor with respect to such obligation to make any payment or performance
(or payment of damages or compensation in the event of nonperformance) of
or on account of any part or all of such obligation, or to assure the owner
of such obligation against loss, (iii) the supplying of funds to or in any
other manner investing in the obligor or any other person with respect to
or on account of such obligation, (iv) repayment of amounts drawn down by
beneficiaries of letters of credit or arising out of the import of goods or
(v) the indemnifying or holding harmless, in any way, of a person against
any part (to the extent of such part) or all of such person's obligation
under a Guaranty except for hold harmless agreements with vendors with
respect to product liability and warranties to customers.
"Hazardous Materials" shall mean any hazardous substances or
wastes as such terms are defined in any applicable Environmental Law,
including (a) oil, petroleum and any by-product thereof and (b) asbestos
and asbestos-containing material.
"Indebtedness" shall mean, with respect to any
person (a) all obligations of such person for borrowed money, (b) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (c) all obligations of such person upon which interest
charges are customarily paid, except for debt obligations related to
foreign accounts receivable sold to certain banks, (d) all obligations of
such person for the deferred purchase price of property or services (except
(i) accounts payable to suppliers incurred in the ordinary course of
business and paid within one year, (ii) non-interest-bearing
notes payable to suppliers incurred in the ordinary course
of business and having a maturity date not later than one
year after the date of issuance thereof, and (iii) payroll
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and other accruals arising in the ordinary course of business), (e) all
obligations of such person under conditional sale or other title retention
agreements relating to property purchased by such person, (f) all
Capitalized Lease Obligations, including obligations arising from sale and
leaseback transactions which are required to be accounted for as
Capitalized Lease Obligations, (g) all Indebtedness of any third party
which is secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) property or
assets of the person in question (the amount of such Indebtedness taken
into account for the purposes of this clause (g) not to exceed the book
value of such property or assets), (h) all Guarantees of such person, and
(i) all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements, or other interest or
exchange rate hedging transactions (the amount of such Indebtedness for
purposes of this clause (i) to be the termination value of such agreement
or arrangement); provided, however, that there shall be
excluded from this definition (x) Indebtedness between the Borrower and any
Subsidiary and (y) Indebtedness between Subsidiaries; provided further,
however, that any Indebtedness owed to a Subsidiary remaining outstanding
after that Subsidiary ceases to be a Subsidiary shall be included as
Indebtedness hereunder.
"Interest Payment Date" shall mean, with respect
to any Loan, the last day of the Interest Period applicable
thereto and, in the case of a LIBOR Loan with an Interest
Period of more than three months' duration or a Fixed Rate
Loan with an Interest Period of more than 90 days' duration,
each day that would have been an Interest Payment Date had
successive Interest Periods of three months' duration or
90 days' duration, as the case may be, been applicable to
such Loan, and, in addition, the date of any refinancing or
conversion of such Loan with or to a Loan of a different
Interest Rate Type.
"Interest Period" shall mean (a) as to any LIBOR
Borrowing, the period commencing on the date of such
Borrowing or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as the case
may be, and ending on the numerically corresponding day (or,
if there is no numerically corresponding day, on the last
day) in the calendar month that is 1, 2, 3 or 6 months
thereafter, as the Borrower may elect, (b) as to any ABR
Borrowing, the period commencing on the date of such
Borrowing and ending on the earliest of (i) the next succeeding March 31,
June 30, September 30 or December 31, (ii) the Maturity Date and (iii) the
date such Borrowing is refinanced with a Borrowing of a different Interest
Rate Type in accordance with Section 2.07 or prepaid in accordance with
Section 2.14 and (c) as to any Fixed Rate Borrowing, the period commencing
on the date of such Borrowing and ending on the date specified in the
Competitive Bids in which the offer to make the Fixed Rate Loans comprising
such Borrowing were extended, which shall not be earlier than 7adays after
the date of such Borrowing or later than 360 days after the date of such
Borrowing; provided, however, that if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless, in the case of LIBOR Loans only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business
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Day. Interest shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
"Interest Rate Type", when used in respect of any
Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "Rate" shall
mean LIBOR, the Alternate Base Rate or the Fixed Rate, as
applicable.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity
as the issuer of Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.06(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus
(b)athe aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure
of any Bank at any time shall be its Applicable Commitment Percentage of
the total LC Exposure at such time.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement.
"LIBOR" shall mean, with respect to any LIBOR Borrowing for any
Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16th of 1%) equal to the rate at which deposits in the
applicable currency approximately equal in principal amount to (a) in the
case of a Revolving Credit Borrowing, the Administrative Agent's portion of
such LIBOR Borrowing and (b) in the case of a Competitive Borrowing, a
principal amount that would have been the Administrative Agent's portion of
such Competitive Borrowing had such Competitive Borrowing been a Revolving
Credit Borrowing, and for a maturity comparable to such Interest Period are
offered to the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised
of LIBOR Loans.
"LIBOR Competitive Loan" shall mean any Competitive Loan
bearing interest at a rate determined by reference to LIBOR in accordance
with the provisions of Article II.
"LIBOR Loan" shall mean any LIBOR Competitive Loan
or LIBOR Revolving Credit Loan.
"LIBOR Revolving Credit Loan" shall mean any
Revolving Credit Loan bearing interest at a rate determined
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by reference to LIBOR in accordance with the provisions of
Article II.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including any
conditional sale or other title retention agreement, any lease in the
nature thereof, and the filing or agreement to give any financing statement
under the Uniform Commercial Code of any jurisdiction other than a
financing statement filed or given as a precautionary measure in respect of
a lease which is not required to be accounted for as a Capitalized Lease
Obligation and which does not otherwise secure an obligation that
constitutes Indebtedness).
"Loan" shall mean a Competitive Loan or a Revolving Credit
Loan, whether made as a LIBOR Loan, an ABR Loan or a Fixed Rate Loan, as
permitted hereby.
"Margin" shall mean, as to any LIBOR Competitive Loan, the
margin (expressed as a percentage rate per annum in the form of a decimal
to four decimal places) to be added to or subtracted from LIBOR in order to
determine the interest rate applicable to such Loan, as specified in the
Competitive Bid relating to such Loan.
"Material Subsidiary" shall mean any Subsidiary (i) the
consolidated net income of which for the most recent fiscal year of the
Borrower for which audited financial statements have been delivered
pursuant to Section 5.05 were greater than or equal to 5% of Consolidated
Net Income for such fiscal year, (ii) the consolidated tangible assets of
which as of the last day of the Borrower's most recently ended fiscal year
were greater than or equal to 5% of the Borrower's consolidated tangible
assets as of such date or (iii) the net worth of which as of the last day
of the Borrower's most recently ended fiscal year was greater than or equal
to 5% of Consolidated Net Worth as of such date; provided that, if at any
time the aggregate amount of the
consolidated net income, consolidated tangible assets or consolidated net
worth of all Subsidiaries incorporated in the United States that are not
Material Subsidiaries exceeds 15% of consolidated net income for any such
fiscal year, 15% of the Borrower's consolidated tangible assets as of the
end of any such fiscal year or 15% of Consolidated Net Worth for any such
fiscal year, the Borrower (or, in the event the Borrower has failed to do
so within 10 days, the Administrative Agent) shall designate as "Material
Subsidiaries" Subsidiaries incorporated in the United States sufficient to
eliminate such excess, and such designated Subsidiaries incorporated in the
United States shall for all purposes of this Agreement constitute Material
Subsidiaries.
"Maturity Date" shall mean the fifth anniversary of the
Execution Date, subject to any extension made pursuant to Section 2.13.
"Multiemployer Plan" shall mean a multiemployer plan as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate
of the Borrower is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Notes" shall mean the Competitive Notes and the
Revolving Credit Notes.
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"Obligations" shall mean the obligation of the Borrower to make
due and punctual payments of principal of and interest on the Loans, the
Facility Fee and all other monetary obligations of the Borrower to the
Administrative Agent or any Bank under this Agreement, the Notes or the
Fundamental Documents.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"person" or "Person" shall mean any natural person,
corporation, trust, association, company, partnership, joint venture or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee plan (other than a
Multiemployer Plan) which is subject to the provisions of Title IV of ERISA
and which is maintained for employees of the Borrower or any ERISA
Affiliate of the Borrower.
"Pro Forma Basis" shall mean, in connection with an acquisition
or disposition by or merger involving the Borrower or any Subsidiary, a
computation of compliance with the requirements of this Agreement for the
immediately preceding four full fiscal quarters or other relevant period
assuming that such acquisition, disposition or merger had occurred at the
beginning of such period. Such computation shall take into account the
relevant financial information with respect to the acquired, disposed of,
or merged entity for such period and shall assume that any Indebtedness
incurred in connection with such acquisition, disposition or merger had
been incurred at the beginning of such period; provided, however, in order
to avoid double-counting, it is acknowledged that if the Borrower or any
Subsidiary incurs
Indebtedness in connection with such a transaction and repays Indebtedness
of the acquired, disposed of or merged entity, the Indebtedness so repaid
shall not be included as Indebtedness of such entity for such period.
"Reduction Date" shall have the meaning given in
Section 2.13(c) hereof.
"Register" shall be as defined in Section 2.24(e).
"Regulation D" shall mean Regulation D of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation G" shall mean Regulation G of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation T" shall mean Regulation T of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as the
same is from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as the
same is from time to time in effect, and all official rulings and
183
interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event
as defined in Section 4043(c) of ERISA or the regulations issued
thereunder.
"Required Banks" shall mean at any time Banks holding (i) at
least 51% of the Commitments and (ii) at least 51% of the principal amount
of Loans then outstanding; provided that in order to terminate the
Commitments or declare the Notes to be forthwith due and payable pursuant
to Article VII hereof, "Required Banks" shall mean Banks holding at least
51% of the aggregate principal amount then outstanding of Credit Exposures.
"Revolving Credit Borrowing" shall mean a Borrowing consisting
of simultaneous Revolving Credit Loans from each of the Banks.
"Revolving Credit Borrowing Request" shall mean a
request made pursuant to Section 2.05 in the form of Exhibit A-5.
"Revolving Credit Exposure" means, with respect to
any Bank at any time, the sum of (a) the outstanding principal amount of
such Bank's Revolving Credit Loans denominated in Dollars, (b) the Dollar
Equivalent of the outstanding principal amount of such Bank's Revolving
Credit Loans denominated in Alternate Currencies, and (c) such Bank's LC
Exposure at such time.
"Revolving Credit Loans" shall mean the revolving
loans made by the Banks to the Borrower pursuant to Section 2.05. Each
Revolving Credit Loan shall be a LIBOR Revolving Credit Loan or an ABR
Loan.
"Revolving Credit Note" shall mean a promissory note of the
Borrower in the form of Exhibit B-2, executed and delivered as provided in
Section 2.09.
"Senior Officer" shall mean the Chairman, Vice
Chairman, President and Senior Vice Presidents of the Borrower.
"Statutory Reserves" shall mean (a) with respect to the Base CD
Rate (as such term is used in the definition of "Alternate Base Rate"), a
fraction (expressed as a decimal), the numerator of which is the number one
and the denominator of which is the number one minus the aggregate rates
expressed as a decimal of (A) basic and supplemental reserve requirements
in effect on the date of effectiveness of the Average Weekly Three-Month
Secondary CD Rate (as such term is defined in the definition of "Alternate
Base Rate") under Regulation D of the Board applicable to three-month
certificates of deposit in units of $100,000 or more issued by a "member
bank" located in a "reserve city" (as such terms are used in Regulation D),
plus (B) marginal reserve requirements in effect on such date of
effectiveness under Regulation D applicable to time deposits of a "member
bank" and (b) with respect to LIBOR, shall mean a fraction (expressed as a
decimal) the numerator of which is the
number one and the denominator of which is one minus the aggregate of the
maximum reserve requirements (including any
marginal, special, emergency or supplemental reserves) established by the
Board or any other banking authority to which a Bank is subject for
Eurocurrency Liabilities (as defined in Regulation D). Such reserve
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percentages shall include those imposed under Regulation D. LIBOR Loans
shall be deemed to constitute Eurocurrency Liabilities and as such shall be
deemed to be subject to such reserve requirements without benefit of or
credit for proration, exceptions or offsets which may be available from
time to time to any Bank under Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"subsidiary" shall mean, with respect to any person, any
corporation, association or other business entity of which more than 50% of
the securities or other ownership interests having ordinary voting power
is, at the time of which any determination is being made, owned or
controlled by such person or one or more subsidiaries of such person.
"Subsidiary" shall mean a subsidiary of the Borrower.
"Total Commitment" shall mean the aggregate amount
of the Banks' Commitments, as in effect at such time.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial withdrawal from
such Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.
SECTION 1.02. Accounting Terms and Determinations. All
accounting terms not specifically defined herein shall be construed in
accordance with generally accepted accounting principles and practices
consistent in all material respects (except for changes with which the
Borrower's independent auditors concur) with those applied in the
preparation of the financial statements referred to in Section 3.05(a) (and
references herein to generally accepted accounting principles shall mean
generally accepted accounting principles as so applied) and all financial
data submitted pursuant to this Agreement shall be prepared in accordance
with such principles and practices, except as otherwise expressed herein.
The
definitions in this Article I shall apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" as used in this
Agreement and any Exhibit or Schedule hereto shall be deemed in each case
to be followed by the phrase "without limitation".
SECTION 1.03. Exchange Rates.
(a) Not later than 1:00 p.m., London time, on each Calculation
Date, the Administrative Agent shall (i) determine the Exchange Rate as of
such Calculation Date with respect to each Alternate Currency and (ii) give
notice thereof to the Banks and the Borrower. The Exchange Rates so
determined shall become effective on the first Business Day immediately
following the relevant Calculation Date (a "Reset Date"), shall remain
effective until the next succeeding Reset Date, and shall for all purposes
of this Agreement (other than Section 10.12 or any other provision
expressly requiring the use of a current Exchange Rate) be the Exchange
Rates employed in converting any amounts between Dollars and Alternate
Currencies.
(b) Not later than 5:00 p.m., London time, on each Reset Date
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and each date on which a Borrowing or issuance of any Letter of Credit
shall occur, the Administrative Agent shall (i) determine the Dollar
Equivalent of the aggregate principal amount of the Loans then outstanding
that are denominated in Alternate Currencies (after giving effect to any
Loans made or repaid on such date) and (ii) notify the Borrower of the
aggregate Credit Exposures of the Banks.
ARTICLE II
Loans
SECTION 2.01. Commitments.
(a) Subject to the terms and conditions hereof and relying
upon the representations and warranties herein set forth, each Bank agrees,
severally and not jointly, to make Revolving Credit Loans to the Borrower,
in Dollars or one or more Alternate
Currencies, at any time and from time to time during the Availability
Period, in an aggregate principal amount at any time outstanding not to
exceed such Bank's Commitment minus (i) the amount by which the Competitive
Loans outstanding at such time shall be deemed to have used such Commitment
pursuant to Section 2.19, and (ii) the amount which is the product of (y)
the aggregate principal amounts (or the Dollar Equivalent thereof) due
under any loans outstanding under the Existing Credit Agreements and listed
on Schedule 2.02 (the "Scheduled Loans") and (z) such Bank's Applicable
Commitment Percentage, subject, however, to the conditions that (a) at no
time shall (i) the sum of (A) the outstanding aggregate principal amount of
all Revolving Credit Exposures of all Banks plus (B) the outstanding
aggregate principal amount of all Competitive Loans made by all Banks
exceed (ii) the Total Commitment minus the Dollar Equivalent of any
outstanding Scheduled Loans, (b) at all times (except as expressly
contemplated by the last sentence of Section
2.13(d)) the Revolving Credit Exposure of each Bank shall equal the product
of (i) such Bank's Applicable Commitment Percentage and (ii) the
outstanding aggregate Revolving Credit Exposures and (c) the aggregate
Dollar Equivalent of the Revolving Credit Loans denominated in Alternate
Currencies shall not exceed $50,000,000 at any time.
(b) Within the foregoing limits, the Borrower may
borrow, pay or repay and reborrow hereunder, on and after the Effective
Date and prior to the Maturity Date, upon the terms and subject to the
conditions and limitations set forth herein.
SECTION 2.02. Loans.
(a) Each Revolving Credit Loan shall be made as part of a
Borrowing consisting of Loans made by the Banks ratably in accordance with
their Commitments; provided, however, that the failure of any Bank to make
any Revolving Credit Loan shall not in itself relieve any other Bank of its
obligation to lend hereunder (it being understood, however, that no Bank
shall be responsible for the failure of any other Bank to make any Loan
required to be made by such other Bank). Each Competitive Loan shall be
made in dollars in accordance with the procedures set forth in Section
2.04. The Competitive Loans comprising any Borrowing shall be denominated
in Dollars in an aggregate amount that is at least $5,000,000 and in an
integral multiple of $1,000,000. The Revolving Credit Loans comprising any
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Borrowing shall be in a minimum amount of $5,000,000 (or the Dollar
Equivalent thereof) and, in the case of Loans denominated in Dollars, an
integral multiple of $1,000,000, or an aggregate principal amount equal to
(or the Dollar Equivalent of which is equal to) the remaining balance of
the available Commitments or the amount required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e)).
(b) Each Competitive Borrowing shall be comprised
entirely of LIBOR Competitive Loans or Fixed Rate Loans, and
each Revolving Credit Borrowing shall be comprised entirely of LIBOR
Revolving Credit Loans, or, in the case of a Borrowing denominated in
Dollars, ABR Loans, as the Borrower may request pursuant to Section 2.04 or
2.05, as applicable. Each Bank may at its option make any LIBOR Loan by
causing any domestic or foreign branch or Affiliate of such Bank to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms
of this Agreement and the applicable Note. Borrowings of more than one
Interest Rate Type may be outstanding at the same time; provided, however,
that the Borrower shall not be entitled to request any Borrowing that, if
made, would result in an aggregate of more than 15 separate Revolving
Credit Loans of any one Bank
being outstanding hereunder at any one time. For purposes of the
calculation required by the immediately preceding sentence, LIBOR Revolving
Credit Loans having different Interest Periods, regardless of whether they
commence on the same date, shall be considered separate Loans and all Loans
of a single Interest Rate Type made on a single date shall be considered a
single Loan if such Loans have a common Interest Period.
(c) Subject to Section 2.07 each Bank shall make
each Loan (other than Loans denominated in Alternate Currencies) to be made
by it hereunder on the proposed date thereof by wire transfer of
immediately available funds to the Administrative Agent in New York, New
York, not later than 12:00 noon, New York City time, and the Administrative
Agent shall by 3:00 p.m., NewaYork City time, credit the amounts so
received to the general deposit account of the Borrower with the
Administrative Agent; (provided that ABR Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be
remitted by the Administrative Agent to the Issuing Bank), or, if a
Borrowing shall not occur on such date because any condition precedent
herein specified shall not have been met, return the amounts so received to
the respective Banks as soon as practicable. Competitive Loans shall be
made by the Bank or Banks whose Competitive Bids therefor are accepted
pursuant to Section 2.04 in the amounts so accepted and Revolving Credit
Loans shall be made by the Banks pro rata in accordance with Section 2.19.
Each Bank shall make each Loan denominated in an Alternate Currency to be
made by it hereunder on the proposed date thereof by wire transfer of such
immediately available funds as may then be customary for the settlement of
international transactions in the applicable Alternate Currency, by 11:00
a.m., London time, to an account designated by the Administrative Agent.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in
like funds, to an account of the Borrower maintained with the
Administrative Agent in London and designated by the Borrower in the
applicable Revolving Credit Borrowing Request or Competitive Bid Request or
to such other account as may be specified in the applicable Revolving
Credit Borrowing Request or Competitive Bid Request. Unless the
Administrative Agent shall have received notice from a Bank prior to the
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date of any Borrowing, the Administrative Agent may assume that such Bank
has made such portion available to the Administrative Agent on the date of
such Borrowing in accordance with this paragraph (c) and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower
on such date a corresponding amount. If and to the extent that such Bank
shall not have made such
portion available to the Administrative Agent, such Bank and the 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 the Borrower until the date such
amount is repaid to the Administrative Agent at (i) in the case of the
Borrower, the interest rate applicable at the time to the Loans comprising
such Borrowing and (ii) in the case of such Bank, the Federal Funds
Effective Rate, or, in the case of any amount denominated in an Alternate
Currency, such other rate as shall be specified by the Administrative Agent
as representing its cost of overnight or short-term funds. If such Bank
shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Bank's Loan as part of such Borrowing for
purposes of this
Agreement.
(d) Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request any Borrowing if
the Interest Period requested with respect thereto would end after the
Maturity Date.
SECTION 2.03. Use of Proceeds. The proceeds of
the Loans shall be used to refinance outstanding Indebtedness of the
Borrower under the Existing Credit Agreements and for general working
capital and corporate purposes, including acquisitions in the health care
products industry.
SECTION 2.04. Competitive Bid Procedure.
(a) In order to request Competitive Bids, the Borrower shall
hand deliver or telecopy to the Administrative Agent a duly completed
Competitive Bid Request in the form of Exhibit A-1, to be received by the
Administrative Agent (i) in the case of a LIBOR Competitive Borrowing, not
later than 10:00
a.m., New York City time, four Business Days before a proposed Competitive
Borrowing and (ii) in the case of a Fixed Rate Borrowing, not later than
10:00 a.m., New York City time, one Business Day before a proposed
Competitive Borrowing. No ABR Loan shall be requested in, or made pursuant
to, a Competitive Bid Request. A Competitive Bid Request that does not
conform substantially to the format of Exhibit A-1 may be rejected in the
Administrative Agent's sole discretion, and the Administrative Agent shall
promptly notify the Borrower of such rejection by telecopier. Such request
shall in each case refer to this Agreement and specify (i) whether the
Borrowing then being requested is to be a LIBOR Borrowing or a Fixed Rate
Borrowing, (ii) the date of such Borrowing (which shall be a Business Day)
and the aggregate principal amount thereof, which shall be in an
aggregate amount that is at least $5,000,000 and, in an integral multiple
of $1,000,000, and (iii) the Interest Period with respect thereto (which
may not end after the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier (in the form set forth in
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Exhibit A-2) the Banks to bid, on the terms and subject to the conditions
of this Agreement, to make Competitive Loans pursuant to the Competitive
Bid Request.
(b) Each Bank may, in its sole discretion, make one or more
Competitive Bids to the Borrower responsive to a Competitive Bid Request.
Each Competitive Bid by a Bank must be received by the Administrative Agent
via telecopier, in the form of Exhibit A-3, (i) in the case of a LIBOR
Competitive Borrowing, not later than 9:30 a.m., New York City time, three
Business Days before a proposed Competitive Borrowing and (ii) in the case
of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on
the day of a proposed Competitive Borrowing. Multiple bids will be
accepted by the Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected by the
Administrative Agent after conferring
with, and upon the instruction of, the Borrower, and the Administrative
Agent shall notify the Bank making such
nonconforming bid of such rejection as soon as practicable. Each
Competitive Bid shall refer to this Agreement and specify (i) the principal
amount (which shall be a minimum principal amount of $5,000,000 and an
integral multiple of $1,000,000 and which may equal the entire principal
amount of the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Bank is willing to make to the Borrower,
(ii) the Competitive Bid Rate or Rates at which the Bank is prepared to
make the Competitive Loan or Loans and (iii) the Interest Period and the
last day thereof. If any Bank shall elect not to make a Competitive Bid,
such Bank shall so notify the Administrative Agent via telecopier (i) in
the case of LIBOR Competitive Loans, not later than 9:30 a.m., New York
City time, three Business
Days before a proposed Competitive Borrowing and (ii) in the case of Fixed
Rate Loans, not later than 9:30aa.m., New York City time, on the day of a
proposed Competitive Borrowing; provided, however, that failure by any Bank
to give such notice shall not cause such Bank to be obligated to make any
Competitive Loan as part of such Competitive Borrowing. A Competitive Bid
submitted by a Bank pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopier of all the Competitive Bids made, the Competitive
Bid Rate and the principal amount of each Competitive Loan in respect of
which a Competitive Bid was made and the identity of the Bank that made
each bid. The Administrative Agent shall send a copy of all Competitive
Bids to the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.04.
(d) The Borrower may in its sole and absolute discretion,
subject only to the provisions of this paragraph (d), accept or reject any
Competitive Bid referred to in paragraph (b) above. The Borrower shall
notify the Administrative Agent by telephone, confirmed by telecopier in
the form of a Competitive Bid Accept/Reject Letter in the form of Exhibit
A-4, whether and to what extent it has decided to accept or reject any of
or all the bids referred to in paragraph (b) above, (i) in the case of a
LIBOR Competitive Borrowing, not later than 10:30 a.m., NewaYork
City time, three Business Days before a proposed Competitive Borrowing and
(ii) in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New
York City time, on the day of a proposed Competitive Borrowing; provided,
however, that (A) the failure by the Borrower to give such notice shall be
deemed to be a rejection of all the bids referred to in paragraph (b)
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above, (B) the Borrower shall not accept a bid made at a particular
Competitive Bid Rate if the Borrower has decided to reject a bid made at a
lower Competitive Bid Rate, (C) the aggregate amount of the Competitive
Bids accepted by the Borrower shall not exceed the principal amount
specified in the Competitive Bid Request, (D) if the Borrower shall accept
a bid or bids made at a particular Competitive Bid Rate but the amount of
such bid or bids shall cause the total amount of bids to be accepted by the
Borrower to exceed the amount specified in the Competitive Bid Request,
then the Borrower shall accept a portion of such bid or bids in an amount
equal to the amount specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted at lower Competitive Bid
Rates with respect to such Competitive Bid Request (it being understood
that acceptance, in the case of multiple bids at such Competitive Bid Rate,
shall be made pro rata in accordance with the amount of each such bid at
such Competitive Bid Rate) and (E) except pursuant to clause (D)
above, no bid shall be accepted for a Competitive Loan unless such
Competitive Loan is in an aggregate amount that is at least $5,000,000 and
an integral multiple of $1,000,000, provided further, however, that if a
Competitive Loan must be in an amount less than $5,000,000 because of the
provisions of clause (D) above, such Competitive Loan may be in an
aggregate amount that is at least $1,000,000 or any integral multiple
thereof, and in calculating the pro rata allocation of acceptances of
portions of multiple bids at a particular Competitive Bid Rate pursuant to
clause (D) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner that shall be in the discretion of the Borrower. A
notice given by the Borrower pursuant to this paragraph (d) shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each
bidding Bank whether its Competitive Bid has been accepted (and if so, in
what amount and at what Competitive Bid Rate) by telecopy sent by the
Administrative Agent, and each successful bidder will thereupon become
bound, subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within four
Business Days after the date of any previous Competitive Bid Request.
(g) If the Administrative Agent shall elect to submit a
Competitive Bid in its capacity as a Bank, it shall
submit such bid directly to the Borrower one quarter of an hour earlier
than the latest time at which the other Banks are required to submit their
bids to the Administrative Agent pursuant to paragraph (b) above.
(h) All notices required by this Section 2.04 shall be given
in accordance with Section 10.01.
(i) Notwithstanding any other provisions of this
Agreement, the Borrower shall not be entitled to request any
Competitive Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date.
SECTION 2.05. Revolving Credit Borrowing Procedure. In order
to effect a Revolving Credit Borrowing, the Borrower shall hand deliver or
telecopy to the Administrative Agent a Borrowing notice in the form of
Exhibit A-5 (a) in the case of a LIBOR Revolving Credit Borrowing, not
later than 12:00 noon, New York City time, three Business Days before a
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proposed Borrowing, and (b) in the case of an ABR Borrowing, not later than
10:00 a.m., New York City time, on the day of a proposed Borrowing. No
Fixed Rate Loan shall be requested or made pursuant to a Revolving Credit
Borrowing Request. Such notice shall be irrevocable and shall in each case
specify (a) whether the Borrowing then being requested is to be a LIBOR
Revolving Credit Borrowing or an ABR Borrowing, (b) whether such Borrowing
is to be in Dollars or an Alternate Currency (and if in an Alternate
Currency, such Alternate Currency), (c) the date of such Revolving Credit
Borrowing (which shall be a Business Day) and the amount thereof and (d) if
such Borrowing is to be a LIBOR Revolving Credit Borrowing, the Interest
Period with respect thereto. If no election as to the Interest Rate Type
of Revolving Credit Borrowing is specified in any such notice, then the
requested Revolving Credit Borrowing shall be an ABR Borrowing. If no
Interest Period with respect to any LIBOR Revolving Credit Borrowing is
specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. If the Borrower shall
not have given notice in accordance with this Section 2.05 of its election
to
refinance a Revolving Credit Borrowing prior to the end of the Interest
Period in effect for such Borrowing, then (a) in the case of a Borrowing in
Dollars, the Borrower shall (unless such Borrowing is repaid at the end of
such Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR Borrowing and (b) in the case of a
Borrowing in an Alternate Currency, such Borrowing shall be due and payable
at the end of such Interest Period. The Administrative Agent shall
promptly advise the Banks of any notice given pursuant to this
Section 2.05 and of each Bank's portion of the requested Borrowing.
SECTION 2.06. Letters of Credit.
(a) General. Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of Letters of Credit
denominated in Dollars for its own account, in a form reasonably acceptable
to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the Availability
Period. In the event of any inconsistency between the terms and conditions
of this Agreement and the terms and conditions of any form of letter of
credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which
such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address
of the
beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the Borrower also
shall submit a letter of credit application on the Issuing Bank's standard
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form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $25,000,000 and (ii) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of
outstanding Competitive Loans will not exceed the Total Commitment minus
the Dollar Equivalent of any amounts due under any outstanding Scheduled
Loans.
(c) Expiration Date. Each Letter of Credit shall
expire at or prior to the close of business on the earlier of (i) the date
one year after the date of the issuance of such Letter of Credit (or, in
the case of any renewal or extension thereof, one year after such renewal
or extension) and (ii) the date that is five Business Days prior to the
Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the Banks,
the Issuing Bank hereby grants to each Bank, and each Bank hereby acquires
from the Issuing Bank, a participation in such Letter of Credit equal to
such Bank's Applicable Commitment Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Bank hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account
of the Issuing Bank, such Bank's Applicable Commitment Percentage of each
LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower
on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any
reason. Each Bank acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal
to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if the Borrower shall have
received notice of such LC Disbursement prior to 10:00 a.m., New York City
time, on such date, or, if such notice has not been received by the
Borrower prior to such time on such date, then not later than 12:00 noon,
New York City time, on (i) the Business Day that the
Borrower receives such notice, if such notice is received prior to 10:00
a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if
such notice is not received prior to such time on the day of receipt;
provided that if such LC Disbursement is not less than $5,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with
an ABR Borrowing in an equivalent amount and, to the extent so financed,
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the Borrower's obligation to make such payment
shall be discharged and replaced by the resulting ABR Borrowing. If the
Borrower fails to make such payment when due, the Administrative Agent
shall notify each Bank of the applicable LC Disbursement, the payment then
due from the Borrower in respect thereof and such Bank's Applicable
Commitment Percentage thereof. Promptly following receipt of such notice,
each Bank shall pay to the Administrative Agent its Applicable Commitment
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.02 with respect to Loans made by such Bank (and
Section 2.02 shall apply, mutatis mutandis, to the payment obligations of
the Banks), and the Administrative Agent shall promptly pay to the Issuing
Bank the amounts so received by it from the Banks. Promptly following
receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Banks have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such
Banks and the Issuing Bank as their interests may appear. Any payment made
by a Bank pursuant to this paragraph to reimburse the Issuing Bank for any
LC Disbursement (other than the funding of ABR Loans as contemplated above)
shall
not constitute a Loan and shall not relieve the Borrower of its obligation
to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision
therein, (ii) any draft or 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, (iii) payment
by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter
of Credit, or (iv) any other event or circumstance whatsoever, whether or
not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a
right of setoff against, the Borrower's obligations hereunder. Neither the
Administrative Agent, the Banks nor the Issuing Bank shall have any
liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of
Credit (including any document required to make a drawing thereunder), any
error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank. Notwithstanding the
foregoing, the Issuing Bank shall not be excused from liability to the
Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to
the extent permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or
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wilful misconduct on the part of the Issuing Bank (as finally determined by
a court of competent jurisdiction), the Issuing Bank shall be deemed to
have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, 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 sole discretion, either accept and make payment 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.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank
shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether
the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing Bank and
the Banks with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Loans; provided that, if the Borrower fails to reimburse
such LC Disbursement when due pursuant to paragraph (e) of this Section,
then Section 2.11 shall apply. Interest accrued pursuant to this paragraph
shall be for the account of the Issuing Bank, except that interest accrued
on and after the date of payment by any Bank pursuant to paragraph (e) of
this Section to reimburse the Issuing Bank shall be for the account of such
Bank to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Banks of any such
replacement of the Issuing Bank. At the time any such replacement shall
become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.08(c). From and
after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "Issuing Bank" shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not
be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives
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notice from the Administrative Agent or the Required Banks (or, if the
maturity of the Loans has been accelerated, Banks with LC Exposures
representing greater than 51% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Banks, an amount in cash
equal to the LC Exposure as of such date plus any accrued
and unpaid interest thereon; provided that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (g) or (h) of Article VII. Such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Such deposits shall
not bear interest other than any interest earned on the investment of such
deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and
expense; provided that such deposits may be invested only in UnitedaStates
Treasury obligations having a maturity of less than or equal to one year or
other comparable money-market instruments. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Bank
for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Banks with LC Exposure representing greater than 51% of the
total LC Exposure), be applied to satisfy other obligations of the Borrower
under this Agreement. If the Borrower is required to provide an amount of
cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to the Borrower within three Business Days after all
Events of Default have been cured or waived.
SECTION 2.07. Refinancings. The Borrower may refinance all or
any part of any Borrowing with a Borrowing of the same or a different
Interest Rate Type made pursuant to Section 2.04 or Section 2.05, subject
to the conditions and limitations set forth herein and elsewhere in this
Agreement, including refinancings of Competitive Borrowings with Revolving
Credit Borrowings and Revolving Credit Borrowings with Competitive
Borrowings. Any Borrowing or part thereof so refinanced shall be deemed to
be repaid in accordance with Section 2.09 with the proceeds of a new
Borrowing hereunder and the proceeds of the new Borrowing, to the extent
they do not exceed the principal amount of the Borrowing being refinanced,
shall not be paid by the Banks to the Administrative Agent or by the
Administrative Agent to the Borrower pursuant to Section 2.02(c); provided,
however, that (a) if the principal amount extended by a Bank in a
refinancing is greater than the principal amount extended by such Bank in
the Borrowing being refinanced,
then such Bank shall pay such difference to the Administrative Agent for
distribution to the Banks described in clause (b) below, (b) if the
principal amount extended by a Bank in the Borrowing being refinanced is
greater than the principal amount being extended by such Bank in the
refinancing, the Administrative Agent shall return the difference to such
Bank out of amounts received pursuant to clause (a) above, (c) to the
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extent any Bank fails to pay the Administrative Agent amounts due from it
pursuant to clause (a) above, any Loan or portion thereof being refinanced
with such amounts shall not be deemed repaid in
accordance with Section 2.09 and, to the extent of such failure, the
Borrower shall pay such amount to the Administrative Agent as required by
Section 2.09; and (d) to the extent the Borrower fails to pay to the
Administrative Agent any amounts due in accordance with Section 2.09 as a
result of the failure of a Bank to pay the Administrative Agent any amounts
due as described in clause (c) above, the portion of any refinanced Loan
deemed not repaid shall be deemed to be outstanding solely to the Bank
which has failed to pay the Administrative Agent amounts due from it
pursuant to clause (a) above to the full extent of such Bank's
portion of such Loan.
SECTION 2.08. Fees. (a) The Borrower agrees to pay to each
Bank, through the Administrative Agent, on each March 31, June 30,
September 30 and December 31 and on the Maturity Date or any earlier date
on which the Commitment of such Bank shall have been terminated and the
outstanding Loans of such Bank repaid in full, a facility fee (a "Facility
Fee") on the Commitment of such Bank, whether used or unused, and, after
the Commitment of such Bank shall have been terminated, on the outstanding
principal amount of such Bank's Revolving Credit Exposure, during the
quarter ending on the date such payment is due (or shorter period
commencing with the date hereof or ending with the Maturity Date or any
earlier date on which the Commitments shall have been terminated and the
outstanding Revolving Credit Exposure of such Bank eliminated), at the
Applicable Percentage from time to time in effect (as determined in
accordance with Section 2.10(e)). All Facility Fees shall be computed on
the basis of the actual number of days elapsed in a year of 360 days. The
Facility Fee due to each Bank shall commence to accrue on the Closing Date
and shall cease to accrue on the Maturity Date or any earlier date on
which the Commitment of such Bank shall have been terminated and the
outstanding Revolving Credit Exposure of such Bank eliminated.
(b) The Borrower agrees to pay the Administrative
Agent, for its own account, the fees provided for in the letter agreement
dated September 17, 1997, between the Borrower and the Administrative
Agent.
(c) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Bank a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the Applicable
Percentage used in determining the interest payable on LIBOR Revolving
Credit Loans, on the average daily amount of such Bank's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to
but excluding the later of the date on which such Bank's
Commitment terminates and the date on which such Bank ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue
at the rate of 1/8 of 1% per annum on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to
but excluding the later of the date of termination of the Commitments and
the date on which there ceases to be any LC Exposure, as well as the
Issuing Bank's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees shall be payable on each
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March 31, June 30, September 30 and December 31, commencing on the first
such date to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall
be payable on demand. Any other fees payable to the Issuing Bank pursuant
to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(d) All fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent (or to the Issuing Bank, in
the case of fees payable to it) for distribution, if and as appropriate,
among the Banks. Once paid, none of the fees shall be refundable under any
circumstances.
SECTION 2.09. Notes; Repayment of Loans. The Competitive
Loans made by each Bank shall be evidenced by a single Competitive Note
duly executed on behalf of the Borrower, dated the Closing Date, in
substantially the form attached hereto as Exhibit B-1 with the blanks
appropriately filled, payable to the order of such Bank in a principal
amount equal to the Total Commitment. The Revolving Credit Loans made by
each Bank shall be evidenced by a single Revolving Credit Note duly
executed on behalf of the Borrower, dated the Closing Date, in
substantially the form attached hereto as Exhibit B-2 with the blanks
appropriately filled, payable to the order of such Bank in a principal
amount equal to the Commitment of such Bank. The
outstanding principal balance of each Competitive Loan or Revolving Credit
Loan, as evidenced by the relevant Note, shall be payable (a) in the case
of a Competitive Loan, on the last day of the Interest Period applicable to
such Competitive Loan and on the Maturity Date and (b) in the case of a
Revolving Credit Loan, on the Maturity Date in the currency of such Loan.
Each Competitive Note and each Revolving Credit Note shall bear interest
from the date thereof on the outstanding principal balance thereof as set
forth in Section 2.10. Each Bank shall, and is hereby authorized by the
Borrower to, endorse on the schedule to the relevant Note held by such Bank
(or on a continuation of such schedule attached to each such Note and made
a part thereof), or otherwise to record in such Bank's internal
records, an appropriate notation evidencing the date, currency and amount
of each Competitive Loan or Revolving Credit Loan, as applicable, of such
Bank, each payment or prepayment of principal of any Competitive Loan or
Revolving Credit Loan, as applicable, and the other information provided on
such schedule; provided, however, that the failure of any Bank to make such
a notation or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Competitive Loans or Revolving
Credit Loans, as applicable, made by such Bank in accordance with
the terms of the relevant Note.
SECTION 2.10. Interest on Loans.
(a) Subject to the provisions of Sections 2.11 and 2.12, the
Loans comprising each LIBOR Borrowing shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 360 days) at a
rate per annum equal to (i) in the case of each LIBOR Revolving Credit
Loan, LIBOR for the Interest Period in effect for such Borrowing plus the
Applicable Percentage and (ii) in the case of each LIBOR Competitive Loan,
LIBOR for the Interest Period in effect for such Borrowing plus the Margin
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offered by the Bank making such Loan and accepted by the Borrower pursuant
to Section 2.04.
(b) Subject to the provisions of Section 2.11, the Loans
comprising each ABR Borrowing shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the
case may be, when determined by reference to the Prime Rate and over a year
of 360 days at all other times) at a rate per annum equal to the Alternate
Base Rate.
(c) Subject to the provisions of Section 2.11, each Fixed Rate
Loan shall bear interest at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to the fixed
rate of interest offered by the Bank making such Loan and accepted by the
Borrower pursuant to Section 2.04.
(d) Interest on each Loan shall be payable on each Interest
Payment Date applicable to such Loan in the currency of such Loan. The
LIBOR or the Alternate Base Rate for each Interest Period or day within an
Interest Period shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
(e) The Applicable Percentage shall be determined based on the
Consolidated Interest Coverage Ratio at the end of the most recent fiscal
quarter for which financial statements have been delivered under Section
5.05 and based on the period of four fiscal quarters then ended treated as
a single accounting period.
SECTION 2.11. Interest on Overdue Amounts. If the Borrower
shall default in the payment of the principal of or interest on any Loan or
any other amount becoming due hereunder, the Borrower shall on demand from
time to time pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment
(after as well as before judgment) at a rate per annum computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days,
as applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate (and a year of 360 days in all other cases)
equal to (a) in the case of any Loan, the rate applicable to such Loan
under Section 2.10 plus 2% per annum and (b) in the case of any other
amount, the rate that would at the time be applicable to an ABR Loan under
Section 2.10 plus 2% per annum.
SECTION 2.12. Alternate Rate of Interest. In the event, and
on each occasion, that on the day two Business Days prior to the
commencement of any Interest Period for a LIBOR Borrowing, the
Administrative Agent shall have determined that deposits in the applicable
currency in the amount of the requested principal amount of such LIBOR
Borrowing are not generally available in the London interbank market, or
that the rate at which such deposits are being offered will not adequately
and fairly reflect the cost to any Bank of making or maintaining such LIBOR
Loans during such Interest Period, or that reasonable means do not exist
for ascertaining the LIBOR Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopier notice of such
determination to the Borrower and the Banks. In the event of any such
determination,
until the Administrative Agent shall have determined that circumstances
giving rise to such notice no longer exist, (a) any request by the Borrower
for a LIBOR Competitive Borrowing pursuant to Section 2.04, and any request
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for a LIBOR Revolving Credit Borrowing in an Alternate Currency, shall be
of no force and effect and shall be denied by the Administrative Agent and
(b) any request by the Borrower for a LIBOR Revolving Credit Borrowing in
Dollars pursuant to Section 2.05 shall be deemed to be a request for an ABR
Loan. Each determination by the Administrative Agent hereunder shall be
conclusive absent manifest error; provided, however, that if a
determination is made that dollar deposits in the amount of the requested
principal amount of such LIBOR Borrowing are not generally available in
the London interbank market, or that the rate at which such dollar deposits
are being offered will not adequately
and fairly reflect the cost to any Bank of making or maintaining such LIBOR
Loans during such Interest Period, or that reasonable means do not exist
for ascertaining the LIBOR Rate, the Administrative Agent shall promptly
notify the Borrower of such determination in writing and the Borrower may,
by notice to the Administrative Agent given within 24 hours of receipt of
such notice, withdraw the request for the LIBOR Competitive Borrowing or
the LIBOR Revolving Credit Borrowing, as applicable.
SECTION 2.13. Termination, Reduction, Increase
and Extension of Commitments.
(a) The Commitments shall be automatically terminated on the
earlier of (a) the Maturity Date or (b) 30 days after the date hereof if
the Closing Date has not occurred.
(b) Subject to Section 2.14(b), upon at least three Business
Days' prior irrevocable written or telecopy notice to the Administrative
Agent, the Borrower may at any time in whole permanently terminate, or from
time to time in part permanently reduce, the Total Commitment; provided,
however, that (i) each partial reduction of the Total Commitment shall be
in an integral multiple of $1,000,000 and in a minimum principal amount of
$10,000,000 and (ii) the Borrower shall not be entitled to make any such
termination or reduction that would reduce the Total Commitment to an
amount less than the aggregate outstanding principal amount of the
Competitive Loans.
(c) Each reduction in the Total Commitment hereunder shall be
made ratably among the Banks in accordance with their respective
Commitments. The Borrower shall pay to the Administrative Agent for the
account of the Banks on the date of each termination or reduction (in the
case of a reduction, the "Reduction Date"), the Facility Fees on the amount
of the Commitments so terminated or reduced accrued to the date of such
termination or reduction.
(d) The Borrower may from time to time, and notwithstanding
any prior reductions in the Total Commitment by the Borrower, by notice to
the Administrative Agent (which shall promptly deliver a copy to each of
the Banks), request that the Total Commitment be increased by an amount
that is not less than $25,000,000 and will not result in the Total
Commitment under this Agreement and the Facility A Credit Agreement
exceeding $350,000,000 in the aggregate. Each such notice shall set forth
the requested amount of the increase in the Total Commitment and the date
on which such increase is to become effective (which shall be not fewer
than 20adays after the date of such notice), and shall offer each Bank the
opportunity to increase its Commitment by its ratable share, based on the
amounts of the Banks' Commitments, of the requested increase in the Total
Commitment. Each Bank shall, by notice to the Borrower and the
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Administrative Agent given not more than 15 Business Days after the date of
the Borrower's notice, either agree to increase its Commitment by all or a
portion of the offered amount or decline to increase its Commitment (and
any Bank that does not deliver such a notice within such period of 15
Business Days shall be deemed to have declined to increase its Commitment);
provided, however, that no Bank may agree to increase its Commitment
hereunder unless it shall have agreed to ratably increase its Commitment
under the Facility A Credit Agreement (if the Facility A Credit Agreement
is then in effect). In the event that, on the
15th Business Day after the Borrower shall have delivered a notice pursuant
to the first sentence of this paragraph, the Banks shall have agreed
pursuant to the preceding sentence to increase their Commitments by an
aggregate amount less than the increase in the Total Commitment requested
by the Borrower, the Borrower shall have the right to arrange for one or
more banks or other financial institutions (any such bank or other
financial institution being called an "Augmenting Bank"), which may include
any Bank, to extend Commitments or increase their existing Commitments in
an aggregate amount equal to all or part of the unsubscribed amount;
provided that each Augmenting Bank, if not already a Bank hereunder, shall
be subject to the approval of the
Borrower and the Administrative Agent (which approval shall not be
unreasonably withheld) and shall execute all such documentation as the
Administrative Agent shall specify to evidence its status as a Bank
hereunder. If (and only if) Banks (including Augmenting Banks) shall have
agreed to increase their Commitments or to extend new Commitments in an
aggregate amount not less than $25,000,000, such increases and such new
Commitments shall become effective on the date specified in the notice
delivered by the Borrower pursuant to the first sentence of this paragraph,
and shall be deemed added to the Commitments set forth in Schedule 2.01
hereof. Notwithstanding the foregoing, no increase in the Total Commitment
(or in the Commitment of any Bank) shall become effective under this
paragraph unless, on the date of such increase, (i) the conditions set
forth in paragraphs (b) and (c) of Sectiona4.01 shall be satisfied (with
all references in such paragraphs to a
Borrowing being deemed to be references to such increase) and the
Administrative Agent shall have received a certificate to that effect dated
such date and executed by a Financial Officer of the Borrower and (ii) on
the effective date of such increase the Total Commitment under and as
defined in the Facility A Credit Agreement shall be proportionately
increased (if the Facility A Credit Agreement is then in effect) in
accordance with the terms of such Agreement. Following any increase in the
Commitments of any of the Banks pursuant to this paragraph, any Revolving
Credit Loans outstanding prior to the effectiveness of such increase shall
continue outstanding until the ends of the respective interest periods
applicable thereto, and shall than be repaid or refinanced with new
Revolving Credit Loans made pursuant to Sections 2.01 and 2.05.
(e) (i) The Borrower may, by notice to the Administrative
Agent (which shall promptly deliver a copy to each of the Banks) not less
than 30adays and not more than 60 days prior to the second anniversary of
the Execution Date (the "Anniversary Date"), request that the Banks extend
the Maturity Date for an additional two years from the Maturity Date then
in effect hereunder (the "Existing Maturity Date"). Each Bank shall, by
notice to the Borrower and the Administrative Agent given not more than 15
Business Days after the date of the Borrower's notice, advise the Borrower
whether or not such Bank agrees to such extension (and any Bank that does
not advise the Borrower on or before the 15th Business Day after the date
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of the Borrower's notice shall be deemed to have advised the Borrower that
it will not agree to such extension).
(ii) The Borrower shall have the right on or before the
Anniversary Date to require any Bank which shall have advised or been
deemed to advise the Borrower that it will not agree to an extension of the
Maturity Date (each a "Non-Extending Bank") to transfer without recourse
(in accordance with and subject to the restrictions contained in Section
2.24, except that the $3,500 processing fee set forth in Section
2.24(b)(iii) shall be paid by the Borrower) all its interests, rights and
obligations under this Agreement to one or more other banks or other
financial institutions (any such bank or other financial institution being
called a "Substitute Bank"), which may include any Bank; provided that (i)
such Substitute Bank, if not already
a Bank hereunder, shall be subject to the approval of the Borrower and the
Administrative Agent (which approval shall not be unreasonably withheld)
and shall execute all such documentation as the Administrative Agent shall
specify to evidence its status as a Bank hereunder, (ii) such assignment
shall become effective as of the Anniversary Date and (iii) the Borrower
shall pay to such Non-Extending Bank in immediately available funds on the
effective date of such assignment the principal of and interest accrued to
the date of payment on the Loans made by it hereunder and all other amounts
accrued for its account or owed to it hereunder.
(iii) If (and only if) Banks (including Substitute Banks)
holding Commitments that represent at least 66 2/3% of the Total Commitment
shall have agreed to extend the Existing Maturity Date (the "Continuing
Banks"), then, (i)athe Maturity Date shall be extended to the date two
years after the Existing Maturity Date, and (ii) the Commitment of each
Non-Extending Bank (subject to any transfer and assignment pursuant to
paragraph (b) above) shall terminate (but such Bank shall continue to be
entitled to the benefits of Sections 2.16, 2.18, 2.23 and 9.05), and all
Loans of such Non-Extending Bank shall become due and
payable, together with all interest accrued thereon and all other amounts
owed to such Bank hereunder, on the Existing Maturity Date.
Notwithstanding the foregoing, no extension of the
Maturity Date shall be effective with respect to any Bank unless, on and as
of the Anniversary Date, the conditions set forth in paragraphs (b) and (c)
of Section 4.01 shall be satisfied (with all references in such paragraphs
to a Borrowing being deemed to be references to such extension) and the
Administrative Agent shall have received a certificate to that effect,
dated the Anniversary Date, and executed by a Financial Officer of the
Borrower.
SECTION 2.14. Prepayment of Loans. (a) Prior to the Maturity
Date the Borrower shall have the right at any time to prepay any Revolving
Credit Borrowing, or, with the consent of the particular Bank or Banks to
receive the prepayment, any Competitive Borrowing (which consent may be
withheld in such Bank's or Banks' sole discretion), in whole or in part,
subject to the requirements of Section 2.18 and 2.19 but otherwise without
premium or penalty, upon prior written or telecopy notice to the
Administrative Agent before 12:00 noon, New York City time, at least one
Business Day prior to such prepayment in the case of an ABR Loan and at
least three Business Days prior to such prepayment in the case of a LIBOR
Loan or Fixed Rate Loan; provided, however, that each such partial
prepayment shall be in a minimum aggregate principal amount of $5,000,000
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(or the Dollar
Equivalent thereof) and, in the case of a Borrowing denominated in Dollars,
an integral multiple of $1,000,000.
(b) On the date of any termination or reduction of the Total
Commitment pursuant to Section 2.13, the Borrower shall pay or prepay so
much of the Revolving Credit Loans as shall be necessary in order that the
aggregate Credit Exposures will not exceed the Total Commitment following
such termination or reduction. Subject to the foregoing, any such payment
or prepayment shall be applied to such Borrowing or Borrowings as the
Borrower shall select. All prepayments under this Section 2.14(b) shall
be subject to Sections 2.18 and 2.19.
(c) On any date when the aggregate Credit Exposures (after
giving effect to any Borrowings effected on such date) exceed the Total
Commitment minus the Dollar Equivalent of any amounts due under any
outstanding Scheduled Loans, the Borrower shall make a mandatory prepayment
of the Revolving Credit Loans in such amount as may be necessary to
eliminate such excess. Any prepayments required by this paragraph shall be
applied to outstanding ABR Loans up to the full amount thereof before they
are applied to outstanding LIBOR Revolving Credit Loans.
(d) Each notice of prepayment shall specify the specific
Borrowing, the prepayment date and the aggregate principal amount of each
Borrowing to be prepaid, shall be irrevocable and shall commit the Borrower
to prepay such Borrowing by the amount stated therein. All prepayments
under this Section 2.14 shall be accompanied by accrued interest on the
principal amount being prepaid to the date of prepayment.
SECTION 2.15. Eurodollar Reserve Costs. The Borrower shall
pay to the Administrative Agent for the account of each Bank, so long as
such Bank shall be required under regulations of the Board to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (as defined in Regulation D), additional interest
on the unpaid principal amount of each LIBOR Loan made to the Borrower by
such Bank, from the date of such Loan until such Loan is paid in full, at
an interest rate per annum equal at all times during the Interest Period
for such Loan to the remainder obtained by subtracting (i) LIBOR for such
Interest Period from (ii) the rate obtained by multiplying LIBOR as
referred to in clause (i) above by the Statutory Reserves of such Bank for
such
Interest Period. Such additional interest shall be determined by such Bank
and notified to the Borrower (with a copy to the Administrative Agent) not
later than five Business Days before the next Interest Payment Date for
such Loan, and such additional interest so notified to the Borrower by any
Bank shall be payable to the Administrative Agent for the account of such
Bank on each Interest Payment Date for such Loan.
SECTION 2.16. Reserve Requirements; Change in
Circumstances.
(a) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority
charged with the interpretation or administration thereof (whether or not
having the force of law) (i) shall subject any Bank (for purposes of this
Section 2.16, the defined term "Bank" shall be deemed to include as
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applicable the Issuing Bank) to, or increase the net amount of, any tax,
levy, impost, duty, charge, fee, deduction or withholding with respect to
any LIBOR Loan, Fixed Rate Loan, or Letter of Credit, or shall change the
basis of taxation of payments to any Bank
of the principal of or interest on any LIBOR Loan, Fixed Rate Loan, or
Letter of Credit made by such Bank or any other fees or amounts payable
hereunder (other than (x) taxes imposed on the overall net income of such
Bank by the jurisdiction in which such Bank has its principal office or by
any political subdivision or taxing authority therein (or any tax which is
enacted or adopted by such jurisdiction, political subdivision or taxing
authority as a direct substitute for any such taxes) or (y) any tax,
assessment, or other governmental charge that would not have been
imposed but for the failure of any Bank to comply with any certification,
information, documentation or other reporting requirement), (ii) shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (other than requirements as to which the Borrower is obligated
to make payments pursuant to Section 2.15) against assets of, deposits with
or for the account of, or credit extended by, such Bank, or (iii)ashall
impose on such Bank or the London interbank market any other condition
affecting this Agreement or any LIBOR Loan, Fixed Rate Loan, or Letter of
Credit made by such Bank, and the result of any of the foregoing shall be
to increase the cost to such Bank of issuing, participating in, making or
maintaining any LIBOR Loan, Fixed Rate Loan, or Letter of Credit, as the
case may
be, or to reduce the amount of any sum received or receivable by such Bank
hereunder (whether of principal, interest or otherwise) in respect thereof
by an amount deemed in good faith by such Bank to be material, then the
Borrower shall pay such additional amount or amounts as will compensate
such Bank for such increase or reduction to such Bank upon demand by such
Bank.
(b) If, after the date of this Agreement, any Bank shall have
determined in good faith that the applicability of any law, rule,
regulation or guideline adopted after the date hereof pursuant to or
arising out of the July 1988 report of the Basle Committee on Lending
Regulations and Supervisory Practices entitled "International Convergence
of Capital Measurement and
Capital Standards", or the adoption after the date hereof of any applicable
law, rule, regulation or guideline regarding capital adequacy, or any
change therein, 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 any lending office of such Bank) with any request or directive
regarding capital adequacy (whether or not having the force of law) of any
such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital or on the
capital of the Bank's holding company, if any, as a consequence of its
obligations
hereunder to a level below that which such Bank (or holding company) could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies or the policies of its holding company,
as the case may be, with respect to capital adequacy) by an amount deemed
by such Bank to be material, then, from time to time, the Borrower shall
pay to such Bank such additional amount or amounts as will compensate such
Bank for such reduction upon demand by such Bank.
(c) A certificate of a Bank setting forth in reasonable detail
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(i) such amount or amounts as shall be necessary to compensate such Bank
(or participating banks or other entities pursuant to Sections 2.06 and
2.24) as specified in paragraph (a) or (b) above, as the case may be, and
(ii) the calculation of such amount or amounts under clause (c)(i), shall
be delivered to the Borrower and shall be conclusive absent manifest error.
The Borrower shall pay such Bank the amount shown as due on any such
certificate within 30 days after its receipt of the same.
(d) Failure on the part of any Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any Interest Period shall
not constitute a waiver of such Bank's rights to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to such Interest Period or any
other Interest Period. The protection of this Section 2.16 shall be
available to each Bank regardless of any possible contention of invalidity
or inapplicability of the law, regulation or condition which shall have
been imposed.
SECTION 2.17. Change in Legality. (a) Notwith standing
anything to the contrary herein contained, if any change in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it
unlawful for any Bank to make or maintain any LIBOR Loan or to give effect
to its obligations to make LIBOR Loans as contemplated hereby, then, by
written notice to the Borrower and to the Administrative Agent, such Bank
may:
(i) declare that LIBOR Loans will not thereafter
be made by such Bank hereunder, whereupon such Bank
shall not submit a Competitive Bid in response to a
request for LIBOR Competitive Loans and the Borrower
shall be prohibited from requesting LIBOR Revolving
Credit Loans from such Bank hereunder unless such
declaration is subsequently withdrawn; and
(ii) require that all outstanding LIBOR Loans made
by it and denominated in Dollars be converted to ABR
Loans, in which event (A) all such LIBOR Loans shall be
automatically converted to ABR Loans as of the
effective date of such notice as provided in Section
2.17(b) and (B) all payments and prepayments of
principal which would otherwise have been applied to
repay the converted LIBOR Loans shall instead be
applied to repay the ABR Loans resulting from the
conversion of such LIBOR Loans.
(iii) declare all outstanding LIBOR Loans made by it
and denominated in an Alternate Currency due and payable in
full.
(b) For purposes of this Section 2.17, a notice to the
Borrower by any Bank pursuant to Section 2.17(a) shall be effective on the
date of receipt thereof by the Borrower.
(c) Notwithstanding the foregoing, if the affected Bank can
continue to offer LIBOR Loans by transferring LIBOR Loans to another
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existing lending office of such Bank, such Bank agrees to so transfer the
LIBOR Loans unless doing so would, in its good faith judgment, subject it
to any expense or liability or be otherwise disadvantageous to it.
SECTION 2.18. Indemnity. The Borrower shall indemnify each
Bank against any loss or reasonable expense which such Bank may sustain or
incur as a consequence of (v) any failure by the Borrower to fulfill on the
date of any Borrowing hereunder the applicable conditions set forth in
Article IV, (w) any failure by the Borrower to borrow hereunder after a
notice of Borrowing pursuant to Article II has been given, (x) any payment,
prepayment or conversion of a LIBOR Loan or Fixed Rate Loan required by any
other provision of this Agreement or otherwise made on a date other than
the last day of the applicable Interest Period, (y) any default in the
payment or prepayment of the
principal amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, by notice of
prepayment or otherwise), or (z) the occurrence of any Event of Default,
including, but not limited to, any loss or reasonable expense sustained or
incurred or to be sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Loan or any
part thereof as a LIBOR Loan or a Fixed Rate Loan. Such loss or reasonable
expense shall include an amount equal to the excess, if any, as reasonably
determined by each Bank of (i) its cost of obtaining the funds for the Loan
being paid, prepaid or converted or not borrowed (based on LIBOR or, in the
case of a Fixed Rate
Loan, the fixed rate of interest applicable thereto) for the period from
the date of such payment, prepayment or conversion or failure to borrow to
the last day of the Interest Period for such Loan (or, in the case of a
failure to borrow, the Interest Period for the Loan which would have
commenced on the date of such failure to borrow) over (ii) the amount of
interest (as reasonably determined by such Bank) that would be realized by
such Bank in re-employing the funds so paid, prepaid or converted or not
borrowed for such period or Interest Period, as the case may be. A
certificate of each Bank setting forth any amount or
amounts which such Bank is entitled to receive pursuant to this Section
2.18 shall be delivered to the Borrower and shall be conclusive, if made in
good faith, absent manifest error. The Borrower shall pay each Bank the
amount shown as due on any certificate containing no manifest error within
30 days after its receipt of the same.
SECTION 2.19. Pro Rata Treatment. Except as permitted under
Sections 2.13, 2.15 and 2.17 with respect to interest, (i) each Revolving
Credit Borrowing, each payment or prepayment of principal of any Revolving
Credit Borrowing, each payment of interest on the Revolving Credit Loans,
each payment of the Facility Fees, each reduction of the Commitments and
each refinancing of any Borrowing with, conversion of any Borrowing to or
continuation of any Borrowing as a Revolving Credit Borrowing of any
Interest Rate Type shall be allocated pro rata among the Banks in
accordance with their respective Commitments (or, if such Commitments shall
have expired or been terminated, in accordance with the respective
principal amount of their outstanding Revolving Credit Loans). Each
payment of principal of any Competitive Borrowing shall be allocated pro
rata among the Banks participating in such Borrowing in accordance with the
respective principal amounts of their outstanding Competitive Loans
comprising such Borrowing. Each payment of interest on any Competitive
Borrowing shall be allocated pro rata among the Banks participating in such
Borrowing in accordance with the respective amounts of accrued and unpaid
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interest on their outstanding Competitive Loans comprising such Borrowing.
For purposes of determining the available Commitments of the Banks at any
time, each outstanding Competitive Borrowing shall be deemed to have
utilized the Commitments of the Banks (including those Banks that shall not
have made Loans as part of such Competitive Borrowing) pro rata in
accordance with such respective Commitments. Each Bank agrees that in
computing such Bank's portion of any Borrowing to be made hereunder, the
Administrative Agent may, in its discretion, round each Bank's percentage
of such Borrowing computed in accordance with Section 2.01, to the next
higher or lower whole dollar amount (or amount in the basic unit of the
applicable Alternate Currency).
SECTION 2.20. Right of Setoff. If any Event of Default shall
have occurred and be continuing and any Bank shall have requested the
Administrative Agent to declare the Notes immediately due and payable
pursuant to Article VII, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Bank to or for the credit or the account of the Borrower against any of and
all the Obligations now or hereafter existing under this Agreement and the
Notes held by such Bank, irrespective of whether or not such Bank shall
have made any demand under this Agreement or such Notes and although such
obligations may be unmatured. Each Bank agrees promptly to notify the
Borrower after any such setoff and application made by such Bank, but the
failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Bank under
this Section 2.20 are in addition to other rights and remedies (including
other rights of setoff) which such Bank may have.
SECTION 2.21. Sharing of Setoffs. Each Bank agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower including, but not limited to, a secured
claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim,
received by such Bank under any applicable bankruptcy, insolvency or other
similar law or otherwise, obtain payment (voluntary or involuntary) in
respect of any Revolving Credit Note held by it (it being understood that
each Bank shall be permitted to exercise any such right with respect to any
obligation of the Borrower to it other than the Revolving Credit Notes
prior to the exercise of such right with respect to any Revolving Credit
Note) as a result of
which the unpaid principal portion of all the Revolving Credit Notes held
by it shall be proportionately less than the unpaid principal portion of
all the Revolving Credit Notes held by any other Bank, it shall be deemed
to have simultaneously purchased from such other Bank a participation in
each Revolving Credit Note held by such other Bank, so that the aggregate
unpaid principal amount of each Revolving Credit Note and participations in
each Revolving Credit Note held by each Bank shall be in the same
proportion to the aggregate unpaid principal amount of all
the Revolving Credit Notes then outstanding as the principal amount of all
the Revolving Credit Notes held by it prior to such exercise of banker's
lien, setoff or counterclaim was to the principal amount of all Revolving
Credit Notes outstanding prior to such exercise of banker's lien, setoff or
counterclaim; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.21 and the payment
recovered by a Bank giving rise thereto shall thereafter be recovered from
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such Bank, such purchase or purchases or adjustments shall be rescinded to
the extent of such recovery and the purchase price or prices or adjustments
paid by such Bank restored to such Bank without interest. The Borrower
expressly consents to the foregoing arrangements and agrees that any Bank
holding a participation in a Revolving Credit Note deemed to have been so
purchased may exercise any and all rights of banker's lien, setoff or
counterclaim to the extent of the participation so purchased in such
Revolving Credit Note with respect to any and all moneys owing by the
Borrower as fully as if such Bank had made a Loan directly to the Borrower
in the amount of the participation.
SECTION 2.22. Payments. The Borrower shall make each payment
hereunder and under any instrument delivered hereunder not later than 12:00
noon, New York City time (or 12:00 noon, London time, in respect of
payments with respect to any Borrowing denominated in any Alternate
Currency), on the day when due in lawful money of the United States (in
freely transferable dollars) to the Administrative Agent at its offices at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (or at its offices at Xxxxxxx
Xxxxx, 0 Xxxxxx Xxxxx Xxxxxx, Xxxxxx, with respect to any Borrowing
denominated in an Alternate Currency) for the account of the Banks, in
Federal or other immediately available funds. Any payment received after
such time on any day shall be deemed to be received on the next Business
Day. The Administrative Agent shall remit each Bank's portion of the
Borrower's payment to such Bank promptly after receipt thereof. Except as
set forth in the definition of "Interest Period" as applied to LIBOR Loans,
if any payment to be made hereunder or under any Note becomes due and
payable on a day other than a Business Day, such payment may be made on the
next succeeding Business Day and such extension of time shall in such case
be included in computing interest, if any, in connection with such payment.
SECTION 2.23. United States Withholding.
(a) Prior to the date of the initial Loans hereunder, and from
time to time thereafter if requested by the Borrower or the Administrative
Agent or required because, as a result of a change in law or a change in
circumstances or otherwise, a previously delivered form or statement
becomes incomplete or incorrect in any material respect, each Bank (for
purposes of this Section 2.23, the defined term "Bank" shall be
deemed to include as applicable the Issuing Bank) organized under the laws
of a jurisdiction outside the United States shall provide, if legally able
to do so and if applicable, the Administrative Agent and the Borrower with
complete, accurate and duly executed forms or other statements prescribed
by the Internal Revenue Service of the United States certifying such Bank's
exemption from, or entitlement to a reduced rate of, United States
withholding taxes (including backup withholding taxes) with respect to all
payments to be made to such Bank hereunder and under the Notes.
(b) The Borrower and the Administrative Agent shall be
entitled to deduct and withhold any and all present or future taxes or
withholdings, and all liabilities with respect thereto, from payments
hereunder or under the Notes, if and to the extent that the Borrower or the
Administrative Agent in good faith determines that such deduction or
withholding is required by the law of the United States, including, without
limitation, any applicable treaty of the United States. In the event the
Borrower or the Administrative Agent shall so determine that deduction or
withholding of taxes is required, it shall advise the affected Bank as to
the basis of such determination prior to
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actually deducting and withholding such taxes. In the event the Borrower
or the Administrative Agent shall so deduct or withhold taxes from amounts
payable hereunder, it (i) shall timely pay to or deposit with the
appropriate taxing authority in a timely manner the full amount of taxes it
has deducted or withheld, (ii) shall promptly provide to the Banks written
evidence of payment of such taxes to, or the deposit thereof with, the
appropriate taxing authority and a statement setting forth the amount of
taxes deducted or withheld, the applicable rate, and any other information
or documentation reasonably requested by the Banks from whom the taxes were
deducted or withheld, and (iii) shall forward to such Banks any payment or
deposit of the deducted or
withheld taxes as may be issued from time to time by the appropriate taxing
authority. Unless the Borrower and the Administrative Agent have received
forms or other documents reasonably satisfactory to them indicating that
payments hereunder or under the Notes are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, the Borrower or the Administrative Agent may
withhold taxes from such payments at the applicable statutory rate in the
case of payments to or for any Bank organized under the laws of a
jurisdiction outside the United States.
(c) Each Bank agrees (i) that as between it and the Borrower
or the Administrative Agent, it shall be the Person to deduct and withhold
taxes, and to the extent required by law it shall deduct and withhold
taxes, on amounts that such Bank may remit to any other Person(s) by reason
of any undisclosed transfer or assignment of an interest in this Agreement
to such other Person(s) pursuant to Section 2.24 and (ii) to indemnify the
Borrower and the Administrative Agent and any officers, directors, agents,
or employees of the Borrower or the Administrative Agent against and to
hold them harmless from any tax, interest, additions to tax, penalties,
reasonable counsel and accountants' fees, disbursements or payments arising
from the assertion by any appropriate taxing authority of any claim against
them relating to a failure to withhold taxes as required by law with
respect to amounts described in clause (i) of this paragraph (c).
(d) Each assignee of a Bank's interest in this Agreement in
conformity with Section 2.24 shall be bound by this Section 2.23, so that
such assignee will have all of the obligations and provide all of the forms
and statements and all indemnities, representations and warranties required
to be given under this Section 2.23.
(e) In the event that any withholding or similar taxes shall
become payable as a result of any change in any statute, treaty, ruling,
judicial decision, determination or regulation or other change in law
(other than a change in the rate of taxes imposed on the overall net income
of any Bank) occurring after the Initial Date in respect of any sum payable
hereunder or under any other Fundamental Document to any Bank or the
Administrative Agent or as a result of any payment being made by a
Guarantor organized in or subject to any taxing jurisdiction outside the
United States (i) the sum payable by the Borrower shall be increased as may
be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.23)
such Bank or the Administrative 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 shall make such deductions and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or
other authority in accordance with
208
applicable law. For purposes of this Section 2.23, the term "Initial Date"
shall mean (i) in the case of the Administrative Agent, the date hereof,
(ii) in the case of each Bank as of the date hereof, the date hereof and
(iii) in the case of any other Bank, the date of the Assignment and
Acceptance pursuant to which it became a Bank.
SECTION 2.24. Participations; Assignments.
(a) Each Bank (for purposes of this Section 2.24, the defined
term "Bank" shall be deemed to include as applicable
the Issuing Bank) may without the consent of the Borrower sell
participations to one or more banks or other entities in all or a portion
of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it and the Notes held by
it); provided, however, that (i) such Bank's obligations under this
Agreement shall remain unchanged, (ii) such Bank shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other entities shall be
entitled to the cost protection provisions contained in Section 2.16 and
Section 2.18 but shall not be entitled to receive pursuant to such
provisions an amount larger than its share of the amount to which the Bank
granting such participation would have been entitled and (iv) the Borrower,
the Administrative Agent and the other Banks shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement; provided further that each Bank shall
retain the sole right and responsibility vis-a-vis the Borrower to enforce
the obligations of the Borrower relating to the Loans or Letters
of Credit and shall retain all voting rights, including the right to
approve any amendment, modification or waiver of any provision of this
Agreement other than amendments, modifications or waivers with respect to
any Facility Fees, the amount of principal or the rate of interest payable
on, or the maturity of, the Loans or Letters of Credit as applicable to the
participating banks or other entities (as to which such participating banks
or other entities may be afforded the right to vote).
(b) Each of the Banks may (but only with the prior written
consent of the Borrower and the Issuing Bank, which consent shall not be
unreasonably withheld), and (unless the assignee is a bank or trust company
with a combined capital and surplus of at least $100,000,000) with the
written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, assign to one or more banks or other entities all or
a portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment and the same portion of the
Revolving Credit Loans at the time owing to it and the Revolving Credit
Note held by it); provided, however, that (i) each such assignment shall be
of a constant, and not a varying, percentage of the assigning Bank's rights
and obligations under this Agreement, and (ii) the amount of the Commitment
of the assigning Bank subject to each such assignment (determined as of the
date the Assignment and Acceptance with respect to such assignment is
delivered to the Bank) shall be either the entire Commitment of such Bank
or a portion thereof in a principal amount of $10,000,000 or a larger
integral multiple of $1,000,000, and (iii) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register (as defined below), an Assignment
and Acceptance, together with any Note or Notes subject to such assignment
and a processing and recordation fee of $3,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date
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specified in each Assignment and Acceptance, which effective date shall be
not earlier than five Business Days after the date of acceptance and
recording by the Administrative Agent, (x) the assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Bank hereunder and under
the other Fundamental Documents and (y) the assigning Bank thereunder
shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of the
assigning Bank's rights and obligations under this Agreement, such
assigning Bank shall cease to be a party hereto).
Notwithstanding the foregoing, any Bank assigning its rights and
obligations under this Agreement may retain any Competitive Loans made by
it outstanding at such time, and in such case shall retain its rights
hereunder in respect of any Loans so retained until such Loans have been
repaid in full in accordance with this Agreement.
(c) Notwithstanding the other provisions of this
Section 2.24, each Bank may at any time assign all or a portion of its
interests, rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and the same portion of the
Loans at any time owing to it and the Notes held by it) to (i) any
Affiliate of such Bank described in clause (b) of the definition of
Affiliate or (ii) any other Bank hereunder.
(d) By executing and delivering an Assignment and Acceptance,
the assigning Bank thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other
than the representation and warranty that it is the legal and beneficial
owner of the interest being assigned thereby free and clear of any adverse
claim, the assigning Bank makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Fundamental Documents or any other
instrument or document furnished pursuant hereto or thereto; (ii) such Bank
assignor makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or any of the
Subsidiaries or any other obligor under the Fundamental Documents or the
performance or observance by the Borrower (on behalf of itself or the
Subsidiaries) or any of the Guarantors or any other obligor under the
Fundamental Documents of any of their respective obligations under the
Fundamental Documents or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee confirms that it has
received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Sections 5.05(a) and 5.05(b) (or if none of such
financial statements shall have then been delivered, then copies of the
financial statements referred to in Section 3.05 hereof) and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon the
assigning Bank, the Administrative Agent or any other person that has
become a 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 action under this Agreement; (v) such assignee
appoints and authorizes the Administrative Agent to take such action on its
210
behalf as the Administrative Agent deems appropriate and to exercise such
powers under the Fundamental Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Bank.
(e) The Administrative Agent shall maintain at its address at
which notices are to be given to it pursuant to Section 10.01 a copy of
each Assignment and Acceptance and a register for the recordation of the
names and addresses of the Banks and the Commitments of, and principal
amount of the Loans owing to, each Bank from time to time (the "Register").
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Administrative Agent and the Banks may treat
each person whose name is recorded in the Register as a Bank hereunder for
all purposes of the Fundamental Documents. The Register shall be available
for inspection by the
Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee together with any Notes subject to
such assignment and evidence of the Borrower's written consent to such
assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in the form of ExhibitaE hereto, (i)
accept such Assignment and Acceptance, (ii) record the information
contained therein in
the Register and (iii) give prompt written notice thereof to the Borrower.
Within five Business Days after receipt of the notice, the Borrower, at its
own expense, shall execute and deliver to the Bank, in exchange for the
surrendered Notes, as applicable (x) a new Competitive Note to the order of
such assignee in an amount equal to the Total Commitment and a new
Revolving Credit Note to the order of such assignee in an amount equal to
the portion of the Commitment assumed by it pursuant to such Assignment and
Acceptance and, (y) a new Revolving Credit Note to the order of the
assigning Bank in an amount equal to the Commitment retained by it
hereunder. Such new Revolving Credit Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such assumed
Commitment and retained Commitment, such new Notes shall be dated the date
of the surrendered Notes and shall otherwise be in substantially
the forms of ExhibitsaB-1 and B-2 hereto, as the case may be. In addition,
the Borrower will promptly, at its own expense, execute such amendments to
the Fundamental Documents to which it is a party and such additional
documents and cause the Guarantors to execute amendments to the Fundamental
Documents to which it is a party, and take such other actions as the
Administrative Agent or the assignee Bank may reasonably request in order
to confirm
that such assignee Bank is entitled to the full benefit of the guarantees
contemplated hereby to the extent of such assignment.
(g) Notwithstanding any other provision herein, any Bank may,
in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 2.24, disclose to the assignee or
participant or proposed assignee or participant, any information relating
to the Borrower or any of the Subsidiaries furnished to such Bank or the
Administrative Agent by or on behalf of the Borrower; provided that prior
to any such disclosure, each such assignee or participant or proposed
211
assignee or participant shall agree in writing to preserve the
confidentiality of any confidential information relating to the Borrower or
any of their Subsidiaries
received from such Bank on the terms of Section 10.11.
(h) Any Bank may at any time pledge or assign all or any
portion of its rights under this Agreement and the Notes to a Federal
Reserve Bank.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Banks
that:
SECTION 3.01. Organization; Corporate Powers.
(a) Each of the Borrower and the Subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization;
(b) each of the Borrower, and the Subsidiaries
(i) has the corporate power and authority to own its property and to carry
on its business as now conducted and (ii) is qualified to do business in
every jurisdiction where such qualification is necessary except where the
failure so to qualify would not have a materially adverse effect on the
condition, financial or otherwise, of the Borrower or of the Borrower and
its Consolidated Subsidiaries taken as a whole;
(c) each of the Borrower and the Guarantors has the
corporate power to execute, deliver and perform its obligations under the
Fundamental Documents to which it is a party and the Borrower has the
corporate power to borrow hereunder and to execute and deliver the Notes;
and
(d) each of the Guarantors has the corporate power and
authority to guarantee the Obligations as contemplated by Article VIII
hereof.
SECTION 3.02. Authorization. The execution, delivery and
performance of this Agreement and the other Fundamental Documents to which
the Borrower or any of the Guarantors is or is to be a party, by each such
party; in the case of the Borrower, the Borrowings hereunder and the
execution and delivery of the Notes; and in the case of each Guarantor, the
guaranty of the Obligations as contemplated in Article VIII (a) have been
duly authorized by all requisite corporate action on the part of the
Borrower and each Guarantor; and (b) will not (i) violate (A) any law, rule
or regulation of the United States or any state or political subdivision
thereof, the certificate of
incorporation or By-laws of the Borrower or any of the Consolidated
Subsidiaries, (B) any applicable order of any court or other agency of
government or (C) any indenture, any agreement for borrowed money, any
bond, note or other similar instrument or any other material agreement or
contract to which the Borrower or any of the Consolidated Subsidiaries is a
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party or by which the Borrower or any of the Consolidated Subsidiaries or
any of their respective properties are bound, (ii)abe in conflict with,
result in a breach of or constitute (with notice or lapse of time or
both) a default under any such indenture, agreement, bond, note, instrument
or other material agreement or contract or (iii) result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon
any property or assets of the Borrower or any of the Consolidated
Subsidiaries except that, in the case of all the above, for any such
violations, conflicts, breaches, defaults, liens, charges or encumbrances
which would not have a material adverse effect on the Borrower and its
Consolidated Subsidiaries taken as a whole or adversely
affect the rights or interest of the Banks.
SECTION 3.03. Enforceability. This Agreement and each other
Fundamental Document to which the Borrower or any of the Guarantors is a
party, is a legal, valid and binding obligation of each such party thereto,
and is enforceable against each such party thereto in accordance with its
terms, except as the enforceability thereof may be limited by the effect of
any applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and by general principles of equity.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, or registration or filing with, or any other action by any
Governmental Authority is required in connection with the execution,
delivery and performance by the Borrower and any of the Guarantors of this
Agreement or of any other Fundamental Document to which it is a party, the
Borrowings hereunder, the guarantee by the Guarantors of the Obligations
under Article VIII or the execution and delivery of the Notes.
SECTION 3.05. Financial Statements and Condition.
(a) The Borrower has heretofore furnished to each of the Banks
audited Consolidated balance sheets of the Borrower and its Consolidated
Subsidiaries as of December 31, 1996 and unaudited condensed Consolidated
balance sheets of the Borrower and its Consolidated Subsidiaries as of June
30, 1997 and the related audited (or, in the case of the fiscal period
ended June 30, 1997, unaudited condensed) Consolidated statements of
income, Consolidated statements of stockholders' equity and Consolidated
statements of cash flows for each of the fiscal periods then ended,
together with related notes and supplemental information. The audited
consolidated balance sheet, statement of income, statement of stockholders'
equity and statement of cash flows are referred to herein as the "Audited
Financial Statements." The unaudited condensed consolidated balance sheet,
statement of income, statement of stockholders' equity and statement of
cash flows are referred to herein as the "Unaudited Financial Statements."
The Audited Financial Statements and the notes thereto were prepared in
accordance with generally accepted accounting principles consistently
applied, and present fairly the Consolidated financial position and results
of operations and cash flows of the Borrower and its Consolidated
Subsidiaries as of the dates and for the periods indicated, and such
balance sheets and related notes show all known direct liabilities and all
known contingent liabilities of a material nature of the
Borrower and its Consolidated Subsidiaries as of such dates which are
required to be included in such financial statements and the notes thereto
in accordance with generally accepted accounting principles. The Unaudited
Financial Statements reflect all adjustments (consisting only of normal
accountingaadjustments) which in the opinion of management of the Borrower
213
are necessary for a fair presentation of the financial position, results of
operations and cash flows of the Borrower for the period presented.
(b) The Borrower has delivered to each of the Banks proaforma
consolidated financial forecasts for the years 1997-1999, consisting of an
income statement, balance sheet, and statement of cash flows together with
a statement of the underlying assumptions. Such proaforma financial
statements are based on good faith estimates and assumptions believed to be
reasonable by senior management of the Borrower as of the Execution Date.
(c) None of the Borrower or any Guarantor (each, a "Credit
Party") is entering into the arrangements contemplated hereby and by the
other Fundamental Documents or intends to make any transfer or incur any
obligations hereunder or thereunder, with actual intent to hinder, delay or
defraud either present or future creditors. On and as of the date of the
initial Borrowing hereunder on a Pro Forma Basis after giving effect to all
Indebtedness (including the Loans hereunder and the Indebtedness incurred
by each Credit Party in connection therewith) (w) each Credit Party expects
the cash available to such Credit Party and its Subsidiaries on a
Consolidated basis, after taking into account all other anticipated uses of
the cash of such Credit Party (including the payments on or in respect of
debt referred to in clause (y) of this Section 3.05(c)), will be sufficient
to satisfy all final judgments for money damages which have been
docketed against such Credit Party and such Subsidiaries or which such
Credit Party believes may be rendered against such Credit Party and such
Subsidiaries in any action in which such Credit Party is a defendant on the
Closing Date (taking into account the reasonably anticipated maximum amount
of any such judgment and such Credit Party's belief as to the earliest
time at which such judgment might be entered); (x) the sum of the present
fair saleable value of the assets of each Credit Party and its Subsidiaries
on a Consolidated basis will exceed the probable liability of such Credit
Party and such Subsidiaries on their debts (including their obligations
under the Guaranty); (y) no
Credit Party and its Subsidiaries on a Consolidated basis will have
incurred or intends to incur, or believes that it will incur, debts beyond
its ability to pay such debts as such debts mature (taking into account the
timing and amounts of cash to be received by such Credit Party and such
Subsidiaries from any source, and amounts to be payable on or in respect of
debts of such Credit Party and such Subsidiaries and the amounts referred
to in clause (w)); and (z) each Credit Party and its Subsidiaries on a
Consolidated basis have sufficient capital with which to conduct their
present and proposed business and the property of such Credit Party and
such Subsidiaries does not constitute
unreasonably small capital with which to conduct their present or proposed
business. For purposes of this Section 3.05, "debt" means any liability on
a claim, and "claim" means (i) right to payment whether or not such right
is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed (other than those being disputed in good
faith), undisputed, legal, equitable, secured or unsecured, or (ii) right
to an equitable remedy for breach of performance if such breach gives rise
to a payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured.
For purposes of this Section 3.05, "present fair saleable value" means the
amount that may be realized if any person's assets are sold as an entirety
with reasonable promptness in an arm's-length transaction under conditions
for the sale of comparable business enterprises obtaining at the time of
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determination.
SECTION 3.06. No Material Adverse Change. There has been no
material adverse change in the business, assets, condition (financial or
otherwise) or results of operations of the Borrower and its Consolidated
Subsidiaries taken as a whole since December 31, 1996 except as previously
disclosed in writing to the Banks prior to the Execution Date.
SECTION 3.07. Title to Properties. All assets of the Borrower
and the Subsidiaries are free and clear of Liens, except such as are
permitted by Section 6.01.
SECTION 3.08. Litigation. There are no actions, suits or
proceedings (whether or not purportedly on behalf of the Borrower or any of
the Subsidiaries), pending or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of the Subsidiaries at law or in
equity or before or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, which involve any of the transactions herein contemplated, or
which have a reasonable likelihood of being determined adversely and if
determined adversely to the Borrower or any of the Subsidiaries, would
result in a material adverse
change in the business, operations, prospects, properties, assets or
condition (financial or otherwise) of the Borrower and its Consolidated
Subsidiaries taken as a whole and neither the Borrower nor any of the
Subsidiaries is in default with respect to any judgment, writ, injunction,
decree, rule or regulation of any court or Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which default would have a materially
adverse effect on the Borrower and its Consolidated Subsidiaries
taken as a whole or have an adverse effect on the Borrower's or the
Guarantors' ability to comply with this Agreement or any other Fundamental
Document.
SECTION 3.09. Tax Returns. The Borrower and each of the
Subsidiaries have timely filed or caused to be filed all Federal, state and
local tax returns which, to the knowledge of the Borrower or such
Subsidiary after due inquiry, are required to be filed and have paid or
caused to be paid all taxes required to be paid with respect to such
returns or any assessment received by it or by any of them to the extent
that such taxes have become due, except taxes the validity of which are
being contested in good faith by appropriate actions or proceedings and
with respect to which the Borrower or such Subsidiary, as the case may be,
shall have made such reserve, or other adequate provision, if any, as shall
be required by generally accepted accounting principles, and except for the
filing of such returns as to which the failure to file will not, either
individually or
in the aggregate, have a material adverse effect on the Borrower and its
Consolidated Subsidiaries taken as a whole, or have an adverse effect on
the Borrower's or the Guarantors' ability to comply with this Agreement or
any other Fundamental Document.
SECTION 3.10. Agreements.
(a) None of the Borrower nor any of the Subsidiaries is
subject to any charter or other corporate restriction materially and
adversely affecting its business, properties, assets, operations or
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condition (financial or otherwise) or a party to any agreement or
instrument materially and adversely affecting the business, properties,
assets, operations or condition (financial or otherwise) of the Borrower
and its Consolidated Subsidiaries taken as a whole. None of the Borrower
or any of the Subsidiaries is in default in the performance, observance or
fulfillment of any agreement or instrument for borrowed money by which it
is bound, or any other agreement or instrument by which it is bound which
individually or in the aggregate materially and adversely affects the
business, properties, assets, operations or condition (financial or
otherwise) of the Borrower and its Consolidated Subsidiaries taken as a
whole.
(b) The Administrative Agent has been provided at
or prior to the Execution Date (i) copies of all credit agreements,
indentures and other agreements related to Indebtedness for borrowed money
of the Borrower or any of the Subsidiaries in an amount greater than
$10,000,000 and, to the extent requested by the Administrative Agent,
copies of any other credit agreements, indentures and other agreements
related to Indebtedness for borrowed money of the Borrower or any of the
Subsidiaries and (ii)aaccess to (and copies of, to the extent requested)
any other contracts or purchase agreements (including collective bargaining
agreements) which are material to the Borrower or the Subsidiaries.
SECTION 3.11. Employee Benefit Plans.
(a) The Borrower and each of its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of ERISA
and the Code and the regulations and published interpretations thereunder.
No Reportable Event has
occurred with respect to any Plan (other than Plans which have been
terminated and as to which the Borrower and its ERISA Affiliates do not
have any significant remaining obligations or liabilities in connection
therewith) as to which the Borrower or any of its ERISA Affiliates was
required to file a report with the PBGC, and the present value of all
benefit liabilities under each Plan maintained by the Borrower or any of
its ERISA Affiliates (based on those assumptions used to fund such Plan)
did not, as of the last annual valuation date applicable thereto, exceed by
a material amount the value of the assets of such Plan. No plan has
incurred an "accumulated funding deficiency" within
the meaning of Section 412(a) or sought or obtained a waiver under Section
412(d)(1) or an extension of time under Section 412(e) of the Code. No
suit, action or other litigation or investigation or a claim (excluding
claims for benefits incurred in the ordinary course of Plan activities) has
been threatened or brought against or with respect to any Plan. To the
best of the knowledge of the Borrower and each of its ERISA Affiliates (i)
no payment required to be made under any Plan would be nondeductible under
Section 280G of the Code, and (ii) in the case of each Plan
intended to qualify under Section 401(a) of the Code, all amendments
required by the Tax Reform Act of 1986 and subsequent legislation for the
continuing qualification of such Plan have been approved and adopted.
(b) None of the Borrower or any of its ERISA Affiliates has
incurred any Withdrawal Liability that materially adversely affects the
financial condition of the Borrower and its Consolidated Subsidiaries taken
as a whole. None of the Borrower or any of its ERISA Affiliates has
received any notification that any Multiemployer Plan is in reorganization
or has been terminated, within the meaning of Title IV of ERISA, and no
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Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated, where such reorganization has resulted or can reasonably be
expected to result in an increase in the contributions required to be made
to such Plan that would materially and adversely affect the financial
condition of the Borrower and its Consolidated Subsidiaries taken as a
whole.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act; Federal Power Act. None of the Borrower or the Subsidiaries
is or will during the term of this Agreement be (i) an "investment company"
as the term is defined in the Investment Company Act of 1940, as amended,
(ii) subject to regulation under the Investment Company Act of 1940, as
amended, (iii) "holding company" as that term is defined in the Public
Utility Holding Company Act of 1935 or (iv) subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act or any
foreign, Federal or local statute or regulation limiting its ability to
incur indebtedness for money borrowed or
guarantee such indebtedness as contemplated hereby.
SECTION 3.13. Federal Reserve Regulations. Subject to Section
4.01(d), none of the Borrower or any of the Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any margin stock
(within the meaning of Regulation U). No part of the proceeds of the Loans
hereunder will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that violates, or
is inconsistent with, the provisions of Regulations G, T, U or X. If
requested by any Bank, the Borrower will furnish to such Bank a statement,
in conformity with the
regulations, on Federal Reserve Form U-1 referred to in said
Regulation U.
SECTION 3.14. Defaults; Compliance with Laws. None of the
Borrower or any of the Subsidiaries is in default under this Agreement or
otherwise in default under any other agreements with respect to borrowed
money in an aggregate outstanding principal amount of $10,000,000 or more.
The Borrower and each of the Subsidiaries has conducted its business and
affairs so as to comply in all respects material to the Borrower and its
Consolidated Subsidiaries taken as a whole with all applicable Federal,
state and local laws and regulations.
SECTION 3.15. Use of Proceeds. Proceeds of the
Loans will be used for the purposes referred to in Section 2.03.
SECTION 3.16. Affiliated Companies. Set forth on Schedule
3.16 hereto is a complete and accurate list of all of the Subsidiaries of
the Borrower and other persons in which the Borrower or a Subsidiary holds
voting stock or a similar interest (other than companies as to which the
Borrower or a Subsidiary, as applicable, owns, directly or indirectly, less
than 5% of the outstanding voting stock), showing as of the Closing Date as
to Subsidiaries (i) the jurisdiction of its incorporation, (ii) the number
of shares of each class of capital stock authorized, (iii) the number of
such shares outstanding, (iv) the percentage of such shares held directly
or indirectly by the Borrower or a
Subsidiary, as applicable, and (v) the number of such shares covered by
outstanding options, warrants, or rights held directly or indirectly by the
Borrower or a Subsidiary, as applicable. Except as set forth on Schedule
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3.16, all of the outstanding capital stock of all of such Subsidiaries has
been validly issued, is fully paid and nonassessable and is owned as set
forth in Schedule 3.16 (directly or indirectly) by the Borrower or a
Subsidiary, except for shares required to be owned by other persons under
applicable foreign law (which shares do not exceed, for any such
Subsidiary, 5% of the total outstanding shares of such Subsidiary), free
and clear of all Liens and any options,
warrants and other similar rights except as contemplated by the Existing
Credit Agreements.
SECTION 3.17. Environmental Liabilities.
(a) Except as set forth on Schedule 3.17 hereof, the
Borrower and the Consolidated Subsidiaries have not used, stored, treated,
transported, manufactured, refined, handled, produced or disposed of any
Hazardous Materials on, under, at, from, or in any way affecting any of
their properties or assets, or otherwise, in any manner which at the time
of the action in question violated any Environmental Law governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials and to the best of the
Borrower's knowledge, but without independent
inquiry, no prior owner of such property or asset or any tenant, subtenant,
prior tenant or prior subtenant thereof has used Hazardous Materials on,
from or affecting such property or asset, or otherwise, in any manner which
at the time of the action in question violated any Environmental Law
governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of Hazardous Materials, except
in each instance such violations as in the aggregate would not have a
material adverse effect upon the Borrower and the Consolidated Subsidiaries
taken as a whole.
(b) Except as set forth on Schedule 3.17, the Borrower and its
Consolidated Subsidiaries do not have any
obligations or liabilities, matured or not matured, absolute or contingent,
assessed or unassessed, which such would reasonably be expected to have a
materially adverse effect on the business or financial condition of the
Borrower and its Consolidated Subsidiaries taken as a whole and, except as
set forth in Schedule 3.17, no claims have been made against the Borrower
or any of its Consolidated Subsidiaries during the past five years and no
presently outstanding citations or notices have been issued against the
Borrower or its Consolidated Subsidiaries, where such would reasonably be
expected to have a materially adverse effect on the business or financial
condition of the Borrower and its Consolidated Subsidiaries taken as a
whole, which in either case have been or are imposed by reason of or based
upon any provision of any Environmental Laws, including,
without limitation, any such obligations or liabilities relating to or
arising out of or attributable, in whole or in part, to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of any Hazardous Materials by the Borrower or the Consolidated
Subsidiaries, in their respective capacities as such, or any of their
respective employees, agents, representatives or predecessors in interest
in connection with or in any way arising from or relating to the Borrower,
the Consolidated Subsidiaries or any of their respective properties, or
relating to or arising from or attributable, in whole or in
part, to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of any such substance, by any
other Person at or on or under any of the real properties owned or used by
218
the Borrower, the Consolidated Subsidiaries or any other location where
such would have a materially adverse effect on the business or financial
condition of the Borrower and its Consolidated Subsidiaries taken as whole.
SECTION 3.18. Disclosure. Neither this Agreement nor any
agreement, document, certificate or written statement furnished to any Bank
or to the Administrative Agent for the benefit of the Banks by or on behalf
of the Borrower or any of the Subsidiaries in connection with the
transactions contemplated hereby, at the time it was furnished contained
any untrue statement of a material fact or omitted to state a material
fact, under the circumstances under which it was made, necessary in order
to make the statements contained herein or therein not misleading provided
that no representation or warranty other than that set forth in Section
3.05(b) is made with respect to the
pro forma consolidated financial forecasts of the Borrower for the years
1997-1999. At the date hereof, there is no fact known to the Borrower
which materially and adversely affects, or in the future is reasonably
expected to materially and adversely affect, the business, assets or
financial condition, of the Borrower and its Consolidated Subsidiaries
taken as a whole (other than facts or conditions affecting the economy
generally).
SECTION 3.19. Insurance. As of the date of this
Agreement, all insurance maintained by the Borrower and its
Subsidiaries on their insurable properties and all other insurance
maintained by them is in full force and effect and all premiums required to
have been paid have been duly paid.
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Borrowings. The obligations of each of the
Banks to make Loans and the Issuing Bank to issue, amend, renew or extend
any Letter of Credit hereunder on the date of each Borrowing or issuance,
amendment, renewal or extension of any Letter of Credit hereunder,
including each refinancing of any Loan with a new Loan as contemplated by
Section 2.07, shall be subject to the following conditions precedent:
(a) Notice. The Administrative Agent shall have
received a notice of such Borrowing as required by Section 2.04 or 2.05, as
applicable.
(b) Representations and Warranties. The representations and
warranties set forth in Article III (except, in the case of a refinancing
of a Borrowing with another Borrowing that does not increase the aggregate
principal amount of the Loans of any Bank outstanding, the representations
contained in Sections 3.06 and 3.08) shall be true and correct in all
material respects on and as of the date of such Borrowing or issuance,
amendment, renewal or extension of such Letter of Credit with the same
effect as if made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date.
(c) No Default. The Borrower and each of the
Guarantors shall be and the Borrower shall have caused each of the
Subsidiaries to be in compliance with all of the terms and provisions set
219
forth herein or in any other Fundamental Document on its part to be
observed or performed, and immediately after such Borrowing no Event of
Default or event which upon notice or lapse of time or both would
constitute an Event of Default shall have occurred and be continuing.
(d) Margin Requirements. If the proceeds of any
Loans (or Letter of Credit) are to be used, directly or indirectly, to
purchase or carry any margin stock or to extend credit or refund
indebtedness incurred for such purpose, the Borrower shall furnish to the
Administrative Agent an opinion of counsel reasonably satisfactory to the
Administrative Agent to the effect set forth in paragraph 7 of Exhibit D-1
to this Agreement.
(e) Additional Documents. The Banks and Issuing
Bank shall have received from the Borrower on the date of each Borrowing
such documents and information as they may reasonably request relating to
the satisfaction of such conditions.
Each Borrowing or issuance, amendment, renewal or extension
of Letter of Credit hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of
such Borrowing or issuance, amendment, renewal or extension
of Letter of Credit as to the matters specified in
paragraphs (b) and (c) of this Section 4.01.
SECTION 4.02. Closing Date. The obligations of the Banks to
make Loans and the Issuing Bank to issue Letters of Credit hereunder are
subject to the following additional conditions precedent:
(a) Closing Date. The Closing Date shall have occurred on or
before the 30th day following the Execution Date.
(b) Notes. On the Closing Date, each Bank shall have received
a duly executed Competitive Note and Revolving Credit Note complying with
the provisions of Section 2.09.
(c) Opinions of Counsel. On the Closing Date each Bank and
the Issuing Bank shall have received the favorable written opinions of
Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel for the Borrower and the
Guarantors and of J. Xxxxxxx Xxxxx, Esq., Secretary and General Counsel of
the Borrower, dated the Closing Date, addressed to each Bank and
satisfactory to Cravath, Swaine & Xxxxx, counsel to the Administrative
Agent, substantially in the forms of Exhibits D-1 and D-2, respectively.
(d) Corporate Documents. On or before the Closing Date, each
Bank and the Issuing Bank shall have received (i) copy of the Certificate
of Incorporation, as amended, of each of the Borrower and each Guarantor,
certified as of a recent date by the Secretary of State of the state of
incorporation of such person; (ii) certificate of such Secretary of State,
dated as of a recent date, as to the good standing of, and payment of taxes
by, the Borrower and each Guarantor, as applicable, and as to the charter
documents of the Borrower and each Guarantor, as applicable, on file in the
office of each such Secretary of State; (iii) certificate of the Secretary
of each of the Borrower and each Guarantor, each dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the
By-laws of the Borrower or such Guarantor, as applicable, as in effect on
the date of such certification, (B) that attached thereto is a true and
220
complete copy of resolutions adopted by the Board of Directors of the
Borrower or such Guarantor, authorizing the execution, delivery and
performance of the Fundamental Documents to which it is a party, (C) that
the Certificate of Incorporation of the Borrower or such Guarantor, as
applicable, has not been amended since the date of the last amendment
thereto indicated on the applicable certificate of the Secretary of State
furnished pursuant to clause (ii) above and (D) as to the incumbency and
specimen signature of each officer of the Borrower or such Guarantor, as
applicable, executing the Fundamental Documents to which it is a party, or
any other document delivered in connection herewith or therewith, as the
case may be, (each such
certificate to contain a certification by another officer of the Borrower
or such Guarantor, as applicable, as to the incumbency and signature of the
officer signing the certificate referred to in this clause (iii)); and (iv)
such other documents as any Bank or counsel for the Administrative Agent
may reasonably request.
(e) Required Consents and Approvals. Except as noted on
Schedule 4.02, all required consents and approvals shall have been obtained
with respect to the transactions contemplated hereby from all Governmental
Authorities with jurisdiction over the business and activities of the
Borrower and the Subsidiaries.
(f) Federal Reserve Regulations. The Administrative Agent
shall be satisfied that the provisions of Regulations G, T, U and X of the
Board will not be violated by the transactions contemplated hereby.
(g) Contribution Agreement. The Administrative Agent shall
have received the Contribution Agreement, duly
executed by the Borrower and each Guarantor.
(h) Fees and Expenses. All accrued but unpaid
Facility Fees and fees due to the Administrative Agent, all as contemplated
by Section 2.08, and all amounts referred to in Section 10.04 then due,
shall have been or shall be simultaneously paid in full.
(i) Existing Indebtedness. Concurrently with the
transactions contemplated hereby, on the Closing Date the Existing
Revolving Credit Agreement shall have been modified to provide for the
reduction of the Commitments of the Banks thereunder (as defined therein)
to an amount not greater than the amount of the Scheduled Loans outstanding
thereunder at such time and further reduction thereof by the amount of any
payment or prepayment of principal of such Scheduled Loans.
(j) Officer's Certificate. The Banks shall have received a
certificate of a Financial Officer dated the Closing Date certifying
compliance with Section 4.01(b) and (c) hereof.
(k) Other Documents. The Administrative Agent shall have
received such other documents as the Administrative Agent may reasonably
require.
ARTICLE V
Affirmative Covenants
221
The Borrower covenants and agrees with each Bank that, so long
as this Agreement shall remain in effect or the principal of or interest on
any Note or any other expenses or amounts payable hereunder shall be unpaid
or the Commitments are in effect, unless the Required Banks otherwise
consent in writing, it will, and it will cause each of its Subsidiaries to:
SECTION 5.01. Corporate Existence. Do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its
corporate existence, material rights, licenses, permits and franchises;
provided that nothing in this Section 5.01 shall prevent the abandonment or
termination of the corporate existence, rights or franchises of any
Subsidiary or the Borrower if such abandonment or termination would not
have a material adverse effect upon the business, assets, liabilities,
financial condition, results of operations or business prospects of the
Borrower and its Subsidiaries taken as a whole or the
ability of the Borrower to perform its obligations hereunder or under any
other Fundamental Document.
SECTION 5.02. Maintenance of Property. At all times maintain
and preserve all property used or useful in working order and condition,
and from time to time make, or cause to be made, all needful and proper
repairs, renewals and replacements thereto, so that the business carried on
in connection therewith may be properly conducted at all times, except to
the extent that the failure to do so would not have a material adverse
effect upon the business, assets, liabilities, financial condition, results
of operations or prospects of the Borrower and its Subsidiaries taken as a
whole or on the ability of the Borrower or any Guarantor to perform its
obligations hereunder or under any other Fundamental Document.
SECTION 5.03. Insurance. (a) Keep its insurable properties
adequately insured at all times; (b) maintain such other insurance, to such
extent and against such risks, including fire and other risks insured
against by extended coverage, as is customary with companies in the same or
similar businesses; (c) maintain in full force and effect public liability
insurance against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by the Borrower or any Subsidiary, as the
case may be, in such amount as the Borrower or such Subsidiary, as the case
may be, shall reasonably deem necessary; and (d) maintain such other
insurance as may be required by law. The Borrower and the Subsidiaries may
self-insure to the extent customary with companies in the same or similar
businesses.
SECTION 5.04. Obligations and Taxes. Pay all its
indebtedness and obligations promptly and in accordance with their terms
except to the extent that the failure to do so would not have a material
adverse effect upon the business, assets, liabilities, financial condition,
results of operations or prospects of the Borrower and its Subsidiaries
taken as a whole or on the ability of the Borrower or any Guarantor to
perform its obligations hereunder or under any other Fundamental Document
and pay and discharge promptly all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in
respect of its property (and use its best efforts to do so), prior to the
time penalties would attach thereto, as well as all lawful claims for
labor, materials and supplies or otherwise which, if unpaid, might become a
Lien or charge upon such properties or any part thereof; provided, however,
that none of the Borrower or any of the Subsidiaries shall be required to
222
pay and discharge or to cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as the validity or amount thereof
shall be contested in good
faith by appropriate actions or proceedings and the Borrower or such
Subsidiary, as the case may be, shall have made such reserve, or other
adequate provision, if any, as shall be required by generally accepted
accounting principles with
respect to any such tax, assessment, charge, levy or claim so contested.
SECTION 5.05. Financial Statements; Reports, etc.
Furnish to the Banks:
(a) As soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower, the Consolidated balance sheet
as of the end of such fiscal year of the Borrower and its Consolidated
Subsidiaries, the related Consolidated statements of income and the
Consolidated statements of cash flows for the year then ended of the
Borrower and its Consolidated Subsidiaries, the foregoing Consolidated
financial statements to be (x) examined by, and to carry the report
reasonably acceptable to the Banks of KPMG Peat Marwick or other
independent public accountants of similar nationally recognized standing
reasonably acceptable to the Banks, and to be in the form of the financial
statements included in he Borrower's annual report on Form 10-K filed with
the Securities and Exchange Commission for the fiscal year ended December
31, 1996, and (y) accompanied by a certificate of said accountants stating
that in making the examination necessary for expressing their opinion on
such statements they have obtained no knowledge, of a financial or
accounting nature, of any violation of any of the terms or
provisions of this Agreement or any other Fundamental Document, or of the
occurrence of any condition or event which, with notice or lapse of time or
both, would constitute an Event of Default, or, if such accountants shall
have obtained knowledge of any such violation, condition or event, they
shall specify in such certificate all such violations, conditions and
events, and the nature thereof, it being understood that said accountants
shall not be liable to anyone for failure to obtain such knowledge. All
such Consolidated financial statements shall be compiled in reasonable
detail in accordance with generally accepted accounting principles applied
on a consistent basis throughout the periods reflected therein, except as
stated therein, and fairly present the financial position and results of
operations and cash flows of the Borrower and its Consolidated Subsidiaries
for the respective periods indicated.
(b) As soon as available, but in any event within 60 days after
the end of each of the first three fiscal quarters of each fiscal year, an
unaudited Consolidated condensed balance sheet, and the related unaudited
Consolidated condensed statements of income for such quarter and for the
then elapsed portion of the fiscal year, and the Consolidated condensed
statements of cash flows of the Borrower and its Consolidated Subsidiaries
for the then-elapsed portion of the fiscal year, the foregoing Consolidated
condensed financial statements to be in
reasonable detail (comparable to the Consolidated condensed financial
statements for the quarter ended June 30, 1997 heretofore delivered to the
Banks) and stating (with respect
to the unaudited Consolidated condensed statements of income and cash
flows) in comparative form the figures as at the end of and for the
comparable periods of the preceding fiscal year and to be certified by a
Financial Officer of the Borrower in his capacity as such as being to the
223
best of his knowledge and belief correct and complete and as presenting
fairly the consolidated financial position and results of operations of the
Borrower and its Consolidated Subsidiaries in accordance with generally
accepted
accounting principles (other than the omission of the notes to the
financial statements required by generally accepted accounting principles)
applied on a basis consistent with
previous fiscal years, in each case subject to normal year-end adjustments.
(c) Concurrently with (a) and (b) above, a certificate of a
Financial Officer of the Borrower, certifying in his capacity as such (i)
that to the best of his knowledge and belief no Event of Default, or event
which with notice or lapse of time or both would constitute such an Event
of Default or event has occurred, and, if so, specifying the nature and
extent thereof and specifying any corrective action taken or proposed to be
taken with respect thereto, (ii) that to the best of his knowledge and
belief the Borrower is in compliance with the covenants set forth in
Sections 6.09, 6.10 and 6.11, (iii)setting forth in reasonable detail
calculations demonstrating compliance with Section 6.01(x), 6.02,
6.04(iii), and 6.06(c), and (iv) setting forth the calculation in
reasonable detail of the Consolidated Interest Coverage Ratio as at the end
of such fiscal quarter and for the period of four fiscal quarters then
ended treated as a single accounting period, and any change in pricing
anticipated to become effective pursuant to such notice.
(d) Promptly upon their becoming available, copies of all
financial statements, reports, notices and proxy statements sent or made
available generally by the Borrower to its public security holders, of all
regular and periodic reports and all registration statements and
prospectuses, if any, filed by the Borrower with any securities exchange or
with the Securities and Exchange Commission, or any comparable foreign
bodies, and of all
press releases and other statements made available generally by any of them
to the public concerning material developments in the business of the
Borrower.
(e) Promptly, from time to time, such other information
regarding the financial condition and business operations of the Borrower
and its Consolidated Subsidiaries as any Bank may reasonably request (with
a copy of any such written information provided to the Administrative
Agent).
SECTION 5.06. Defaults and Other Notices. Give the
Administrative Agent prompt (but in any event not later than five Business
Days after an officer of the Borrower shall become aware of the occurrence
of such event) written notice of the following:
(a) any Event of Default and any event which with
notice or lapse of time or both would constitute an
Event of Default; and
(b) any development (other than those specified
above as to which the Administrative Agent has received
due notice) which has resulted in, or which the
Borrower reasonably believes will result in, a material
adverse change in the business, assets, liabilities or
financial condition of the Borrower and its
224
Consolidated Subsidiaries taken as a whole or the
ability of the Borrower to perform its obligations
hereunder.
SECTION 5.07. ERISA. (a) Comply in all material respects
with the applicable provisions of ERISA and the Code and (b) furnish to the
Administrative Agent (i) as soon as possible, and in any event within 30
days after any officer of the Borrower or any of its ERISA Affiliates knows
or has reason to know that any Reportable Event with respect to any Plan
has occurred that alone or together with any other Reportable Event with
respect to the same or another Plan could reasonably be expected to result
in liability of the Company to the PBGC in an aggregate amount exceeding
$5,000,000, a statement of a Financial Officer setting forth details as to
such Reportable Event and the action that the
Borrower proposes to take with respect thereto, together with a copy of the
notice of such Reportable Event, if any, given to the PBGC, (ii) promptly
after receipt thereof, a copy of any notice the Borrower or any of its
ERISA Affiliates may receive from the PBGC relating to the intention of the
PBGC to terminate any Plan or Plans or to appoint a trustee to administer
any such Plan,
(iii) within 10 days after a filing with the PBGC pursuant to Section
412(n) of the Code of a notice of failure to make a required installment or
other payment with respect to a Plan, a statement of a Financial Officer
setting forth details as to such failure and the action that the Borrower
proposes to take with respect thereto, together with a copy of such notice
given to the PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Borrower or any of its ERISA Affiliates from the
sponsor of a Multiemployer Plan, a copy of each notice received by the
Borrower or any ERISA Affiliate of the Borrower concerning (A) the
imposition of Withdrawal Liability by a
Multiemployer Plan in an amount exceeding $5,000,000 or (B) a determination
that a Multiemployer Plan is, or is expected to be, terminated or in
reorganization, both within the meaning of Title IV of ERISA, and which, in
each case, is expected to result in an increase in annual contributions of
the Borrower or any of its ERISA Affiliates to such Multiemployer Plan in
an amount exceeding $5,000,000.
SECTION 5.08. Access to Premises and Records. Maintain the
financial records of the Borrower and its Consolidated Subsidiaries in
accordance with generally accepted accounting principles and permit
representatives of the Banks to have access, at all reasonable times upon
reasonable notice, to the Borrower and any of its Subsidiaries and their
properties and to make such excerpts from such financial books and records
as such representatives reasonably request and to discuss the business,
operations, properties and financial and other condition of the Borrower
and such Subsidiaries with officers and employees of the Borrower and such
Subsidiaries and the independent certified public accountants of the
Borrower; provided that no Bank shall purchase, sell or otherwise acquire
or dispose of any interest in a security of the Borrower in the public
markets on the basis of any material nonpublic information so obtained.
SECTION 5.09. Compliance with Laws, etc. The Borrower and its
Subsidiaries shall comply in all material
respects with the requirements of all applicable laws, rules, regulations
and orders of any Governmental Authority, except to the extent that the
failure to do so would not have a material adverse effect upon the
business, assets, liabilities, financial condition, results of operations
225
or prospects of the Borrower and its Subsidiaries taken as a whole or on
the ability of the Borrower or any Guarantor to perform its obligations
hereunder or under any other Fundamental Document. If any authorization or
approval or other action by, or notice to or filing with, any
Governmental Authority is required for the performance by the Borrower of
this Agreement or any other Fundamental Document, the Borrower will
promptly obtain such approval or make such notice or filing and shall
provide satisfactory evidence thereof to the Administrative Agent.
SECTION 5.10. Security Interests. If any property of the
Borrower or any of its Subsidiaries, whether now owned or hereafter
acquired, is subjected to any Lien not permitted by Section 6.01, the
Borrower will make, or will cause to be made, effective provision whereby
the Obligations shall be secured equally and ratably with all other
obligations secured by such Lien, and, if such provision is not made, an
equitable lien, so equally and ratably securing the Obligations, shall
exist on such
property to the full extent permitted under applicable law; it being
understood that the Borrower's compliance with the provisions of this
Section 5.10 shall not, in any way, constitute a cure by the Borrower or a
waiver by the Banks of the Borrower's failure to perform or observe any of
the covenants or agreements in Section 6.01.
SECTION 5.11. Subsidiary Guarantors. Promptly upon any person
incorporated in the United States becoming a Subsidiary that is a Material
Subsidiary, or upon any subsidiary incorporated in the United States
becoming a Material Subsidiary, the Borrower agrees that it or the other
direct owner of such Subsidiary shall cause such Subsidiary to sign such an
instrument substantially in the form of ExhibitaC hereto, under which such
Subsidiary shall become a party to the Contribution Agreement as a
Guarantor and assume all obligations of a Guarantor under the Credit
Agreement, all in a manner satisfactory to the Administrative Agent and its
counsel; provided, however, the
Borrower shall be permitted at any time to cause any of its Subsidiaries
not then subject to this Section 5.11 to become a party to this Agreement
and the Contribution Agreement in accordance with the requirements hereof.
SECTION 5.12. Environmental Laws.
(a) Promptly notify the Administrative Agent upon any Senior
Officer of the Borrower becoming aware of any violation or
noncompliance with, or liability under any Environmental Laws which, when
taken together with all other pending violations would reasonably be
expected to be materially adverse to the Borrower and the Consolidated
Subsidiaries taken as a whole, and promptly furnish to the Administrative
Agent all notices of any nature which the Borrower or any Consolidated
Subsidiaries may receive from any Governmental Authority or other Person
with respect to any violation, or potential violation or noncompliance
with, or liability or potential liability under any Environmental Laws
which, in any case or when taken together with all such other notices,
would reasonably be expected to have a material adverse effect on the
Borrower and the Consolidated Subsidiaries
taken as a whole.
(b) Comply with and use reasonable efforts to ensure
compliance by all tenants and subtenants with all Environmental Laws, and
obtain and comply in all material respects with and maintain and use
226
reasonable efforts to ensure that all tenants and subtenants obtain and
comply in all material respects with and maintain any and all licenses,
approvals, registrations or permits required by Environmental Laws.
(c) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and
other actions required under all Environmental Laws and promptly comply in
all material respects with all lawful orders and directives of all
Governmental Authorities.
(d) Defend, indemnify and hold harmless the Administrative
Agent and the Banks, and their respective employees, agents, officers and
directors, from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of, or in
any way related to the violation of or noncompliance with any Environmental
Laws, or any orders, requirements or demands of Governmental Authorities
related thereto, including, without limitation, reasonable attorney and
consultant fees, investigation and laboratory fees, court costs and
litigation expenses, but excluding therefrom all claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses
arising out of or resulting from (i) the gross negligence or wilful
misconduct of such indemnified party or (ii) any acts or omissions of any
indemnified party occurring after such indemnified party is in possession
of, or controls the operation of, any property or asset.
SECTION 5.13. Existing Credit Agreements. Repay
each Scheduled Loan in full at the end of the Interest Period applicable
thereto, and terminate the Existing Revolving Credit Agreement at such time
as all Scheduled Loans outstanding thereunder have been repaid.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with the Banks that, so long
as this Agreement shall remain in effect or the principal of or interest on
any Note or any other expenses or amount payable hereunder shall be unpaid
or the Commitments are in effect, unless the Required Banks otherwise
consent in writing, it will not, and it will not cause or permit any of its
Subsidiaries, directly or indirectly, to:
SECTION 6.01. Liens. Incur, create or permit to
exist any Lien on (or sale and leaseback transaction with respect to) any
property, assets or stock owned or hereafter acquired by the Borrower or
any of its Subsidiaries, other than:
(i) Liens for taxes, assessments or governmental
charges or levies not yet delinquent or thereafter
payable without penalty for nonpayment or (if
foreclosure, distraint, sale or other similar
proceedings shall not have been commenced) being
contested in good faith and by appropriate actions or
proceedings promptly initiated and diligently
conducted, if such reserve or other appropriate
provision, if any, as shall be required by generally
227
accepted accounting principles shall have been made
therefor;
(ii) Liens of carriers, warehousemen, mechanics and
materialmen incurred in the ordinary course of business
for sums not yet due or being contested in good faith
and by appropriate actions or proceedings promptly
initiated and diligently conducted, if such reserve or
other appropriate provision, if any, as shall be
required by generally accepted accounting principles
shall have been made therefor;
(iii) Liens incurred or deposits made in the
ordinary course of business, in connection with
workers' compensation, unemployment insurance and other
social security, or to secure the performance of bids,
tenders, leases, contracts (other than the repayment of
borrowed money), statutory obligations, surety, customs
and appeal bonds;
(iv) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions,
waivers, restrictions on the use of real property or
minor irregularities of title to real property (and
with respect to leasehold encumbrances or interests,
mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and
arising by, through or under or asserted by a landlord
or owner of the leased property, with or without
consent of the lessee), none of which materially
impairs the use of any parcel of real property material
to the operation of the business of the owner thereof
or the value of such property for the purpose of such
business;
(v) Liens securing purchase money Indebtedness of
the Borrower and its Subsidiaries provided; that (A)
such Liens shall not encumber any property other than
the property acquired, (B) the Indebtedness secured
thereby does not exceed the purchase price of such
property, and (C) such transaction does not otherwise
violate this Agreement;
(vi) Liens upon assets of a corporation existing at
the time such corporation is merged into or
consolidated with the Borrower or a Subsidiary or at
the time of its acquisition by the Borrower or a
Subsidiary or its becoming a Subsidiary; provided that
such Lien does not spread to any other asset at any
time owned by the Borrower or any Subsidiary;
(vii) Liens in existence on the date hereof which
are listed in Schedule 6.01 (which Schedule includes
all such Liens (other than Liens of the types described
in paragraphs (i) through (v) above) securing
obligations in excess of $500,000);
228
(viii) Liens arising out of the renewal or refunding
of any Indebtedness of the Borrower and its
Subsidiaries secured by Liens permitted by the
foregoing; provided that the aggregate principal amount
of such Indebtedness is not increased and is not
secured by additional assets and the Indebtedness
secured by the Lien is permitted under this Agreement;
(ix) Liens in connection with attachments,
judgments or awards as to which an appeal or other
appropriate proceedings for contest or review are
promptly commenced and diligently pursued in good faith
(and as to which foreclosure and other enforcement
proceedings shall not have been commenced (unless fully
bonded or otherwise effectively stayed)); and
(x) other Liens on assets with an aggregate book
value for all such assets subject to Liens, which when
added to the aggregate book value of assets subject to
Sale and Leaseback Transactions permitted under
Section 6.06(c), do not at the time in effect exceed
the lesser of (a) $40,000,000 and (b) 10% of
Consolidated Net Worth.
SECTION 6.02. Indebtedness. Permit any of the foreign
Subsidiaries or any domestic Subsidiaries which are not Guarantors
hereunder to incur, create, assume, become or be liable in any manner with
respect to, or permit any of such Subsidiaries to permit or suffer to
exist, any Indebtedness, unless after giving effect to such Indebtedness
the total Indebtedness of all such Subsidiaries is no greater than the
lesser of (a) $60,000,000 and (b) 15% of Consolidated Net Worth; provided,
however, this Section 6.02 shall not apply to any Subsidiary which becomes
a Guarantor hereunder in accordance with Section 5.11 hereof.
SECTION 6.03. Mergers, Consolidations, Sales of
Assets and Acquisitions. Neither the Borrower nor any Subsidiary (in one
transaction or series of transactions) will wind-up, liquidate or dissolve
its affairs, or enter into any transaction of merger or consolidation, or
sell or otherwise dispose of all or any part of its property or assets,
except:
(a) mergers between the Borrower and a Subsidiary
or between Subsidiaries;
(b) sales of inventory, marketable securities,
receivables owed to a foreign subsidiary and
receivables of the Borrower or any Subsidiary from
export sales, in each case in the ordinary course of
business;
(c) sales permitted pursuant to Section 6.06;
(d) subject to Section 6.03(e) below, any merger
(other than as described in (a) above), consolidation,
dissolution or liquidation; provided, however, that
(i) immediately prior to and on a Pro Forma Basis after
giving effect to such transaction no Default or Event
229
of Default has occurred or is continuing, (ii) if such
transaction involves a Person other than the Borrower
and its Subsidiaries, the Administrative Agent shall
promptly receive a certificate of a Financial Officer
of the Borrower confirming that such transaction
complies with the requirements set forth in this
section and (iii) if such transaction involves the
Borrower, the Borrower is the surviving entity;
(e) a disposition of less than substantially all
of the assets of the Borrower and its Subsidiaries,
taken as a whole, (i) for consideration which
represents fair market value (as reasonably determined
in good faith by the Borrower's Board of Directors) or,
at a price determined by the Board of Directors of the
Borrower to be in the best interests of the Borrower
under circumstances where the Board deems a sale on
terms other than fair market value to be in the best
interest of the Borrower, (ii) immediately prior to and
on a Pro Forma Basis after giving effect thereto, no
Event of Default or Default shall have occurred and be
continuing and (iii) if the transaction involves
consideration of $20,000,000 or more, the
Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section; and
(f) acquisitions of an interest in any business
from any Person (whether pursuant to a merger, an
acquisition of stock, assets, a business unit or
otherwise); provided that (i) immediately prior to and
on a Pro Forma Basis after giving effect thereto, no
Event of Default or Default shall have occurred and be
continuing and (ii) if the transaction involves
consideration equal to or in excess of $10,000,000, the
Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section.
SECTION 6.04. Change of Business. Engage in any
business activities other than those related or incidental to its present
business activities, namely, the manufacture and wholesale distribution of
(i) dental supplies and equipment, (ii)amedical/industrial supplies and
equipment and (iii) other healthcare products; provided that (x) the
business activities, described in clause (iii) shall not at any time
represent more than 20% of the Consolidated Net Income of the Borrower and
the Subsidiaries as of the end of the then most recently completed fiscal
year of the Borrower, and (y) the assets of the business activities
described in clause (iii) shall not at any time represent more than 20% of
the Consolidated assets of the Borrower and the Subsidiaries.
SECTION 6.05. Transactions with Affiliates. Enter into any
transactions with or provide any employee benefits to any Affiliate of the
Borrower or any Subsidiary except (a) in the ordinary course of business
and upon fair and reasonable terms no less favorable than the Borrower or
230
the Subsidiary concerned could, in the good faith judgment of senior
management of the Borrower, obtain or could become entitled to in an
arm's-length transaction with a person or entity which was not an Affiliate
of the Borrower or such Subsidiary, (b) transactions involving the Borrower
and one or more Subsidiaries exclusively, (c) transactions involving two or
more Subsidiaries exclusively, (d) transactions with the ESOP or other
similar foreign employee stock ownership plans of Subsidiaries of the
Borrower which do not materially and adversely affect the interests of the
Administrative Agent or the Banks under the Fundamental Documents, and (e)
transactions otherwise expressly permitted hereunder.
SECTION 6.06. Sale and Leaseback. Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell
or transfer any property, whether real or personal, and used or useful in
its business, whether now owned or hereafter acquired, if the Borrower or
any of its Subsidiaries at the time of such sale or disposition intends to
lease or otherwise acquire the right to use or possess (except by purchase)
such property or like property for a substantially similar purpose (a "Sale
and Leaseback Transaction") except:
(a) the Des Plaines Lease;
(b) for any such Sale and Leaseback Transaction in
which the property is sold by the Borrower to a
Subsidiary or by a Subsidiary to the Borrower or
another Subsidiary; or
(c) the Borrower or any Subsidiary may enter into
any Sale and Leaseback Transaction if (i) at the time
of such Sale and Leaseback Transaction no Default or
Event of Default shall have occurred and be continuing,
(ii) the proceeds from the sale of the subject property
shall be equal to not less than 80% of its fair market
value (as reasonably determined by the Borrower's Board
of Directors) and (iii) after giving effect to such
Sale and Leaseback Transaction, the aggregate book
value of all assets of the Borrower and the
Subsidiaries subject to Sale and Leaseback Transactions
when added to the aggregate book value of assets
subject to Liens permitted under Sectiona6.01(x) and
excluding those described in paragraphs (a) and (b)
above, shall not at any time exceed the lesser of
(a) $40,000,000 and (b) 10% of Consolidated Net Worth.
SECTION 6.07. Dividends by Subsidiaries. Create,
incur, assume or permit to exist any agreement or instrument
which has the effect of restricting or prohibiting the power, authority or
legal right of such Subsidiary to declare or pay any dividend or other
distribution other than, prior to the Closing Date, the Existing Credit
Agreements.
SECTION 6.08. Amendments to Certain Documents.
Amend, modify or otherwise change (a) any covenant or event of default in
any material indenture or other material agreement or material instrument
relating to any Indebtedness or (b) any of its constitutive documents, in
either case in any manner materially adverse to the interests of the
Administrative Agent, the Banks, or the Issuing Bank under the Fundamental
231
Documents.
SECTION 6.09. Minimum Consolidated Net Worth.
Permit Consolidated Net Worth at any time to be less than (x) $300,000,000
plus (y) 25% of aggregate Consolidated Net Income for each full fiscal
quarter for which such Consolidated Net Income is positive that shall have
been completed during the period from the Closing Date to the date of
determination.
SECTION 6.10. Interest Coverage. Permit the
Consolidated Interest Coverage Ratio at the end of any fiscal quarter to be
less than 3.5 to 1.0 for the period of the four consecutive fiscal quarters
then ended treated as a single accounting period.
SECTION 6.11. Debt Ratio. Permit the Debt Ratio
at any time to be greater than .5 to 1.0.
SECTION 6.12. Fiscal Year. Change its fiscal year or modify
or change accounting treatments or reporting practices except as otherwise
permitted or required by generally accepted accounting principles.
ARTICLE VII
Events of Default
In the case of the happening of any of the following events
(hereinafter called "Events of Default"):
(a) any representation or warranty made by the
Borrower or any of the Guarantors in connection with
this Agreement or any other Fundamental Document or
with the execution and delivery of the Notes or the
borrowings hereunder or any statement or representation
made in any report, certificate, financial statement or
other instrument furnished by the Borrower or any of
the Guarantors to the Banks, the Issuing Bank or the
Administrative Agent pursuant to this Agreement or any
other Fundamental Document shall prove to have been
false or misleading in any material respect when made
or delivered;
(b) default shall be made in the payment of the
principal of or interest on any Note or of any fees or
other amounts payable by the Borrower hereunder, when
and as the same shall become due and payable, whether
at the due date thereof or at a date fixed for
prepayment thereof or by acceleration thereof or
otherwise, and, in the case of interest, such default
shall continue unremedied for five Business Days;
(c) default shall be made with respect to the
payment of any amount due under any agreement or other
evidence of Indebtedness for borrowed money (other than
the Notes) of the Borrower or any of the Subsidiaries
in an aggregate outstanding principal amount of
$10,000,000 or more; or any other default shall be made
232
with respect to any such Indebtedness and such
Indebtedness shall have been accelerated so that any
payment in respect of such Indebtedness shall be or
become due prior to its maturity or scheduled due date;
(d) default shall be made in the due observance or
performance of any covenant, condition or agreement on
the part of the Borrower on its own behalf or on behalf
of any of the Subsidiaries or any of the Guarantors
contained in Article VI or Article VIII hereof;
provided that in the case of a default under
Section 6.01, resulting solely from incurrence of a
prohibited obligation by a Subsidiary without the
approval or knowledge of any officer of the Borrower,
such default shall continue unremedied for 30 days;
(e) the guarantee under Article VIII hereof shall
(i) not remain in full force and effect, be declared
null and void or shall not be enforceable against the
Guarantors in accordance with its terms and such
guarantee shall not be reinstated to full force and
effect and enforceability against the Guarantors in
accordance with its terms within 30 days or (ii) be
disaffirmed or repudiated by the Borrower or any such
Guarantor;
(f) default shall be made in the due observance or
performance of any other covenant, condition or
agreement to be observed or performed by the Borrower
on its own behalf or on behalf of any of the
Subsidiaries or any of the Guarantors pursuant to the
terms hereof or of any other Fundamental Document and
such default shall continue unremedied for a period
equal to the sum of 30 days after such failure shall
have first occurred plus an additional three Business
Days after any officer of the Borrower shall become
aware of such failure, but in no event shall such
period extend for more than 30 days after any officer
of the Borrower shall become aware of such failure;
(g) the Borrower or any Material Subsidiary shall
(i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United
States Code or any other Federal or state bankruptcy,
insolvency or similar law, (ii) consent to the
institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing
of any such petition, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian,
sequestrator or similar official for the Borrower or
any such Material Subsidiary or for a substantial part
of its property, (iv) file an answer admitting the
material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for
the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its
debts as they become due or (vii) take corporate action
233
for the purpose of effecting any of the foregoing;
(h) an involuntary proceeding shall be commenced
or an involuntary petition shall be filed in a court of
competent jurisdiction seeking (i) relief in respect of
the Borrower or any Material Subsidiary, or of a
substantial part of its property, under Title 11 of the
United States Code, (ii) the appointment of a receiver,
trustee, custodian, sequestrator or similar official
for the Borrower or such Material Subsidiary or for a
substantial part of its property or (iii) the
winding-up or liquidation of the Borrower or such
Material Subsidiary; and such proceeding or petition
shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall
continue unstayed and in effect for 30 days;
(i) a final judgment for the payment of money
(which alone, or when aggregated with all other such
unpaid judgments to the extent not fully covered by
insurance from financially sound and reputable insurers
against the Borrower and its Subsidiaries at such time,
is for $10,000,000 or more) shall be rendered against
the Borrower or any of the Subsidiaries and the same
shall remain undischarged for a period of 60 days or
any action is taken by the judgment creditor to levy
thereon;
(j) a Reportable Event or Reportable Events, or a
failure to make a required payment (within the meaning
of Section 412(n)(1)(A) of the Code) shall have
occurred with respect to any Plan or Plans that
reasonably could be expected to result in liability of
the Borrower to the PBGC or to a Plan in an aggregate
amount exceeding $10,000,000 and, within 30 days after
the reporting of any such Reportable Event to the
Administrative Agent or after the receipt by the
Administrative Agent of the statement required pursuant
to Section 5.07(b)(iii) hereof, the Administrative
Agent shall have notified the Borrower in writing that
(i) the Required Banks have made a determination that,
on the basis of such Reportable Event or Reportable
Events or the receipt of such statement, there are
reasonable grounds (A) for the termination of such Plan
or Plans by PBGC, (B) for the appointment by the
appropriate United States District Court of a trustee
to administer such Plan or Plans or (C) for the
imposition of a Lien in favor of a Plan and (ii) as a
result thereof an Event of Default exists hereunder; or
a trustee shall be appointed by a United States
District Court to administer any such Plan or Plans; or
the PBGC shall institute proceedings to terminate any
Plan or Plans;
(k) (i) the Borrower or any of its ERISA
Affiliates shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal
234
Liability to such Multiemployer Plan, (ii) the Borrower
or any such ERISA Affiliate does not have reasonable
grounds for contesting such Withdrawal Liability and is
not in fact contesting such Withdrawal Liability in a
timely and appropriate manner, and (iii) the amount of
such Withdrawal Liability specified in such notice,
when aggregated with all other amounts required to be
paid to Multiemployer Plans in connection with
Withdrawal Liabilities (determined as of the date or
dates of such notification), exceeds $10,000,000 or
requires payments exceeding $10,000,000 in any year;
(l) the Borrower or any of its ERISA Affiliates
shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the
meaning of Title IV of ERISA, if solely as a result of
such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates
to all Multiemployer Plans that are then in
reorganization or have been or are being terminated
have been or will be increased over the amounts
required to be contributed to such Multiemployer Plans
for their most recently completed plan years by an
amount exceeding $10,000,000 in any year;
(m) (i) a person or two or more persons acting in
concert (excluding the ESOP and any other person who
holds 5% or more of the outstanding shares of voting
stock of the Borrower as of the Closing Date) shall
acquire beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of more than
50% of the outstanding shares of voting stock of the
Borrower, or (ii) the individuals who, as of such
Closing Date, are members of the Board of Directors of
the Borrower (the "Incumbent Board") shall cease to
constitute at least a majority of the Board of
Directors of the Borrower; provided, however, that if
the election, or nomination for election of any new
director was approved by a vote of at least a majority
of the Incumbent Board or any nominating committee
thereof, such new director shall, for purposes hereof,
be considered as a member of the Incumbent Board; and
then, and in every such event and at any time thereafter
during the continuance of such event, the Administrative
Agent may (unless, in the case of each Event of Default
other than that specified in paragraph (b) above, the
Required Banks shall have waived such Event of Default in
writing, and, in the case of an Event of Default specified
in paragraph (b) above, each of the Banks shall have waived
such Event of Default in writing), and, upon direction of
the Required Banks, will by written notice to the Borrower,
take any of the following actions, at the same or different
times: (i) terminate the Commitments and (ii) declare the
Notes to be forthwith due and payable, whereupon the Notes
235
and all other fees and amounts owing hereunder shall become
forthwith due and payable, both as to principal and
interest, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly
waived, anything contained herein or in the Notes to the
contrary notwithstanding. Notwithstanding the foregoing, if
an Event of Default specified in paragraph (g) or (h) above
occurs with respect to the Borrower or a Guarantor, the
Notes shall become immediately due and payable, both as to
principal and interest, without any action by the
Administrative Agent and without presentment, demand,
protest or any other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the
Notes to the contrary notwithstanding.
ARTICLE VIII
Guarantee
SECTION 8.01. Guarantee.
(a) Each Guarantor hereby, jointly and severally,
unconditionally and irrevocably guarantees to the Banks (for purposes of
this Article VIII, the defined term "Bank" shall be deemed to include the
Issuing Bank as applicable) and the Administrative Agent the due and
punctual payment by and
performance of the Obligations (including interest accruing on and after
the filing of any petition in bankruptcy or reorganization of the
applicable obligor whether or not post-filing interest is allowed in such
proceeding) by the
Borrower.
(b) Each Guarantor waives notice of acceptance of this
guarantee and also waives presentation to, demand of payment from and
protest to the Borrower of any of the Obligations, as well as notice of
protest for nonpayment and all other formalities. The obligations of each
Guarantor hereunder shall not be affected by (i) the failure of the
Administrative Agent or the Banks to assert any claim or demand or to
enforce any right or remedy against the Borrower under this Agreement or
otherwise; (ii) any extension or renewal of any of the Obligations; (iii)
any rescission, waiver, amendment or modification of any of the
terms or provisions of this Agreement or any other agreement or instrument;
(iv) the taking or release of any security held by the Banks or the
Administrative Agent for the performance of any of the Obligations; (v) the
failure of the Administrative Agent or the Banks to exercise any right or
remedy against the Borrower or any other guarantor of the Obligations; (vi)
any stay in bankruptcy or insolvency proceedings of the Borrower or any
other Person; or (vii) the release or substitution of any other Guarantor.
(c) Each Guarantor agrees that this guarantee
constitutes a guarantee of payment when due and not of collection and
waives any right to require that any resort be had by the Banks or the
Administrative Agent to any security held for payment of the Obligations or
to any balance of any deposit account or credit on the books of the Banks
or the Administrative Agent in favor of the Borrower or any other person.
236
SECTION 8.02. No Impairment of Guaranty. The
obligations of each Guarantor hereunder shall not be subject
to any reduction, limitation, impairment or termination for
any reason, including any claim of waiver, release, surrender, alteration
or compromise, and shall not be subject to any defense, setoff,
counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality or unenforceability of the Obligations or otherwise.
Without limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Banks or the Administrative Agent to assert
any claim or demand or to enforce any remedy under this Agreement or any
other agreement or instrument, by any waiver or modification of any thereof
by the Banks or the Administrative Agent, by any default, failure or delay,
wilful or otherwise, in the performance of the Obligations
or by any other act or omission or delay to do any other act
which might in any manner or to any extent vary the risk of any Guarantor
or which would otherwise operate as a discharge of a guarantor as a matter
of law.
SECTION 8.03. Continuation and Reinstatement, etc. Each
Guarantor further agrees that this guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time any payment on any
Obligation is rescinded or must otherwise be restored by the Banks upon the
bankruptcy or reorganization of the Borrower or otherwise.
SECTION 8.04. Payment, etc.
(a) In furtherance of the foregoing and not in limitation of
any other right which the Banks or the Administrative Agent may have at law
or in equity against any Guarantor by virtue hereof, upon the failure of
the Borrower to pay or perform any Obligation when and as the same shall
become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each Guarantor hereby promises to and will, upon
receipt of written demand by the Banks or the Administrative Agent,
forthwith pay, or cause to be paid, in cash, to the Administrative Agent,
an amount equal to the sum of (i) the unpaid principal amount of such
Obligations, (ii) accrued
and unpaid interest on such Obligations and (iii) all other unpaid
Obligations of the Borrower to the Administrative Agent and the Banks.
(b) Each Guarantor agrees that to the fullest extent permitted
by applicable law, all rights against the Borrower arising as a result of
any payment by any Guarantor under this guarantee by way of right of
subrogation or otherwise shall in all respects be junior and subordinate in
right of payment to the prior indefeasible payment in full of all the
Obligations to the Administrative Agent for the benefit of the Banks. If
after the Borrower has failed to pay any Obligation when due, any amount
shall be paid to any Guarantor for the account of the Borrower, such amount
shall be held in trust for the benefit of the Administrative Agent and
shall forthwith be paid to the Administrative Agent on behalf of the Banks
to be credited and applied to the Obligations when due and payable.
(c) Each Guarantor waives notice of and hereby consents to any
agreements or arrangements whatsoever by the
Banks or the Administrative Agent with the Borrower, or anyone else,
including agreements and arrangements for payment, extension,
subordination, composition, arrangement, discharge or release of the whole
237
or any part of the Obligations, or for the discharge or surrender of any or
all security, or for compromise, whether by way of acceptance of part
payment or otherwise, and the same shall in no way impair such Guarantor's
liability hereunder. Nothing shall discharge or satisfy the liability of
any Guarantor hereunder except the full performance and payment of the
Obligations.
SECTION 8.05. Benefit to Guarantors. Each Guarantor
acknowledges that it has realized a direct economic benefit as a result of
the refinancing of the loans outstanding under the Existing Credit
Agreements of the Borrower and the availability to it of the proceeds of
Loans that have been or may in the future be made hereunder.
ARTICLE IX
Administrative Agent
SECTION 9.01. Appointment of Administrative Agent. In order
to expedite the various transactions contemplated by this Agreement, The
Chase Manhattan Bank is hereby appointed to act as Administrative Agent on
behalf of the Banks (for purposes of Article IX, the defined term "Bank"
shall be deemed to include the Issuing Bank as applicable). Each Bank
irrevocably authorizes and directs the Administrative Agent to take such
action on behalf of such Bank under the terms and provisions of this
Agreement and to exercise such powers hereunder as are specifically
delegated to or required of the Administrative Agent by the terms and
provisions hereof, together with such powers as
are reasonably incidental thereto.
SECTION 9.02. Exculpation. Neither the Administrative Agent
nor the Documentation Agent, nor any of
their directors, officers, employees or agents shall be liable as such for
any action taken or omitted by any of them hereunder except for its or his
own gross negligence or wilful misconduct, or be responsible for any
statement, warranty or representation herein, or be required to ascertain
or to make any inquiry concerning the performance or observance by the
Borrower or the Guarantors of any of the terms, conditions, covenants or
agreements of this Agreement. Neither the Administrative Agent nor the
Documentation Agent shall be responsible to the Banks for
the due execution, genuineness, validity, enforceability or effectiveness
of this Agreement or any other Fundamental Document, the Notes or any other
instrument to which reference is made herein. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof until written notice of transfer shall have been filed with it. The
Administrative Agent shall promptly notify the Borrower of any such notice
received by such Administrative Agent. The Administrative Agent shall in
all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Banks, and, except as
otherwise specifically provided herein, such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the
Banks. The Administrative Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any paper or
document believed by it to be genuine and correct and to have been signed
or sent by the proper person or persons. Neither the Administrative Agent
nor any of its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure or delay in
238
performance or breach by any Bank of any of its obligations hereunder or to
any Bank on account of the failure or delay in performance or breach by any
other Bank, or the Borrower, of any of their respective obligations
hereunder or in connection herewith.
SECTION 9.03. Consultation with Counsel. The
Administrative Agent may execute any and all duties hereunder by or through
agents or employees and shall be entitled to advice of legal counsel
selected by it with respect to all matters arising hereunder and shall not
be liable for any action taken or suffered in good faith by it in
accordance with the advice of such counsel.
SECTION 9.04. The Administrative Agent, Individually. With
respect to the Loans made by it and the
Notes issued to it, the Administrative Agent in its individual capacity and
not as Administrative Agent shall have the same rights and powers hereunder
and under any other agreement as any other Bank and may exercise the same
as though it were not the Administrative Agent, and the Administrative
Agent and its affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any of the
Subsidiaries or other Affiliate of the Borrower or any such Subsidiary as
if it were not the Administrative Agent.
SECTION 9.05. Reimbursement and Indemnification.
Each Bank agrees (i) to reimburse the Administrative Agent in the amount of
such Bank's proportionate share of any expenses incurred for the benefit of
the Banks, including counsel fees and compensation of agents and employees
paid for services rendered on behalf of the Banks, not reimbursed by the
Borrower, and (ii) to indemnify and hold harmless the Administrative Agent
and any of its directors, officers, employees or agents, on demand, in the
amount of its proportionate share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against it or any of them
in any way relating to or arising out of this Agreement, or under the other
Fundamental Documents or any action taken or omitted by it or any of them
under this Agreement or under the other Fundamental Documents, to the
extent not reimbursed by the Borrower; provided, however, that no Bank
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross
negligence or wilful misconduct of the Administrative Agent
or any of its directors, officers, employees or agents.
SECTION 9.06. Resignation. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by notifying the
Banks and the Borrower. Upon any such resignation, and with the consent of
the Borrower (which shall be deemed to be granted if an Event of Default
shall have occurred and be continuing), the Required Banks shall have the
right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by such Banks and shall
have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent having a combined capital and surplus of at least
$300,000,000. Upon the acceptance of any appointment as Administrative
239
Agent hereunder by a successor bank, such successor shall thereupon succeed
to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative Agent shall
be discharged from its duties and obligations hereunder and under any other
documents executed in connection herewith. After the Administrative
Agent's resignation hereunder, the provisions of this Article IX shall
continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other communications
provided for herein shall be in writing and shall be delivered or mailed
(or in the case of telegraphic communication, if by telegram, delivered to
the telegraph company and, if by telex, telecopy, graphic scanning or other
telegraphic communications equipment, delivered by such equipment)
addressed, if to the Borrower at 000 Xxxx Xxxxxxx Xxxxxx, Xxxx,
Xxxxxxxxxxxx 00000, to the attention of J. Xxxxxxx Xxxxx, Secretary, if to
the Administrative Agent, to it at One Chase Xxxxxxxxx Xxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, to the attention of Xxxxxx Xxxxxxx and to it at
9 Xxxxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, XXXXXX X00XX to the attention of
Xxxxxx Xxxxxx, with a copy to Xxxx Xxx Xxx at the Chase Manhattan Bank, 000
Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and if to a Bank (for purposes of Article X, the
defined term "Bank" shall be deemed to include the Issuing Bank as
applicable), to it at its address set forth on the signature pages of this
Agreement. All notices and other communications given to any party hereto
in accordance with the provisions of this Agreement shall be effective when
received.
SECTION 10.02. No Waivers; Amendments. No failure or delay of
the Administrative Agent or any Bank in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any
other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent and the Banks
hereunder
are cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any such Bank would otherwise have. No notice or
demand on the Borrower shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances; provided that the
foregoing shall not limit the right of the Borrower to any notice expressly
provided for herein. No modification, amendment or waiver of any provision
of this Agreement or any of the Notes nor consent to any departure of the
Borrower therefrom shall in any event be effective unless
the same shall be in writing and signed by the Required Banks and then such
waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Any such modification, amendment, waiver or
consent, so given, shall be effective to bind all the Banks; provided, that
no such modification, amendment, waiver or consent may be made which will
(i) reduce or increase the amount or alter the term of any Commitment of
any Bank hereunder without the written consent of such Bank; (ii) extend
240
the time for payment of principal of or interest on any Note, or reduce the
principal amount or change the method of calculation provided for herein
for determining the rate of interest on any Note, without the written
consent of the holder of such Note; (iii) vary the amount or time for
payment of fees payable to any Bank hereunder without the written consent
of such Bank; (iv) change the definition of Required Banks set forth in
Article I, or amend this Section 10.02 or Sectiona2.19 without the written
consent of all the Banks; or (v) give any Note preference over any other
Note in payment of principal or interest.
SECTION 10.03. Applicable Law; Submission to
Jurisdiction; Service of Process; Waiver of Jury Trial.
(a) This Agreement and the Notes shall be construed in
accordance with and governed by the laws of the State of New York
applicable to agreements made and to be performed wholly in the State of
New York.
(b) Each of the Borrower and each Guarantor hereby irrevocably
submits itself to the jurisdiction of the Supreme Court of the State of New
York, New York County, and to the jurisdiction of the United States
District Court for the Southern District of New York, for the purpose of
any suit, action or other proceeding arising out of or relating to this
Agreement, any other Fundamental Document or any related document or any of
the transactions contemplated hereby or thereby, and hereby waives, and
agrees not to assert, by way of motion, as a defense, or otherwise, in any
suit, action or proceeding, any claim that it is not personally subject to
the jurisdiction of the above-named courts for any reason whatsoever, that
such suit, action or proceeding is brought in an inconvenient forum or that
the venue of such suit, action or proceeding is improper or that this
Agreement or any other Fundamental Documents or, to the full extent
permitted by applicable law, any subject matter of any thereof may not be
enforced in or by such courts. Neither this paragraph (b) nor paragraph
(c) below shall restrict the Administrative Agent or any Bank from bringing
suit or instituting other judicial proceedings against the Borrower or any
Guarantor or any of their assets in any court or jurisdiction not referred
to herein or therein.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notice in Section 10.01.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
(d) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT, ANY OTHER FUNDAMENTAL DOCUMENT AND ANY OF THE OTHER
DOCUMENTS OR TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN.
(e) Except as prohibited by law, each party hereto hereby
waives any right it may have to claim or recover in any litigation referred
to in paragraph (d) of this Section 10.03 any special, exemplary, punitive,
indirect (including loss of profits) or consequential damages or any
damages other than, or in addition to, actual damages; provided that if a
party hereto shall obtain a final, nonappealable judgment that another
party shall have intentionally and knowingly breached its obligations under
this Agreement with an intention of injuring the claimant
241
party, the claimant party may then seek consequential damages from such
breaching party for its losses suffered as a result of such intentional
breach.
(f) Each party hereto (i) certifies that neither any
representative, agent nor attorney of any Bank has represented, expressly
or otherwise, that such Bank would not, in the event of litigation, seek to
enforce the foregoing waivers and (ii) acknowledges that it has been
induced to enter into this Agreement by, among other things, the mutual
waivers and certifications herein.
SECTION 10.04. Expenses; Documentary Taxes. The Borrower
agrees to pay all reasonable out-of-pocket expenses (i) incurred by the
Administrative Agent in connection with the preparation, execution and
delivery, waiver or modification and administration of this Agreement, any
other Fundamental Document or any related documents or in connection with
the performance of due diligence by the Administrative Agent or the
syndication of the Loans (whether or not the transactions hereby
contemplated shall be consummated), and (ii) incurred by the Administrative
Agent in connection with the making of the Loans hereunder, or incurred by
the Administrative Agent or the Banks in connection with the enforcement of
this Agreement or the Loans made or the Notes issued hereunder or any other
Fundamental Documents and with respect to any action which may be
instituted by any person against the Banks or the Administrative Agent in
respect of the foregoing (but not with respect to any act of gross
negligence or wilful misconduct of the Administrative Agent or any Bank),
or as a result of any transaction, action or nonaction arising from
the foregoing, including, but not limited to, the fees and disbursements of
Cravath, Swaine & Xxxxx, counsel to the Administrative Agent. The Borrower
agrees that it shall indemnify the Banks and the Administrative Agent from
and hold them harmless against any documentary taxes, assessments or
charges made by any Governmental Authority by reason of the execution and
delivery of this Agreement, the Fundamental Documents or any of the Notes.
The obligations of the Borrower under this Section 10.04 shall survive the
termination of this Agreement and the Commitments and/or the payment of the
Notes.
SECTION 10.05. Indemnity. Further, by the execution hereof,
the Borrower agrees to indemnify and hold harmless the Administrative Agent
and the Banks and their directors, officers, employees and agents (each an
"Indemnified Party") from and against any and all expenses, including
reasonable fees and disbursements of counsel, losses, claims, damages and
liabilities arising out of any claim, litigation, investigation or
proceeding (whether or not the Administrative Agent or any Bank is a party
thereto) relating to the financing contemplated hereby and
transactions related thereto, but excluding therefrom all expenses, losses,
claims, damages, and liabilities arising out of or resulting from the gross
negligence or wilful misconduct of any Indemnified Party. The obligations
of the Borrower under this Section 10.05 shall survive the termination of
this Agreement and the Commitments and/or payments of the Loans.
SECTION 10.06. Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the Borrower, the Guarantors,
the Administrative Agent, the Documentation Agent and the Banks and their
respective successors and assigns. Neither the Borrower nor the Guarantors
may assign or transfer any of their rights or obligations hereunder without
the written consent of the Required Banks.
242
SECTION 10.07. Survival of Agreements, Representations and
Warranties, etc. All warranties, representations and covenants made by the
Borrower or the Guarantors herein or in any certificate or other instrument
delivered by it or on its behalf in connection with this Agreement shall be
considered to have been relied upon by the Banks and shall survive the
making of the Loans herein contemplated, the issuance and delivery to the
Banks of the Notes and the issuance, amendment, renewal or extension of any
Letter of Credit regardless of any investigation made by the Banks or on
their behalf and shall continue in full force and effect so long as any
amount due or to become due hereunder is outstanding and unpaid and so long
as the Commitments have not been terminated. All statements in any such
certificate or other instrument shall constitute representations and
warranties by the Borrower hereunder.
SECTION 10.08. Severability. In case any one or more of the
provisions contained in this Agreement or the Notes should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10.09. Cover Page and Section Headings. The cover
page and section headings used herein are for convenience of reference
only, are not part of this Agreement and are not to affect the construction
of or be taken into consideration in interpreting this Agreement.
SECTION 10.10. Counterparts. This Agreement may be signed in
any number of counterparts with the effect as if the signatures thereto
were upon the same instrument. This Agreement shall become effective when
copies hereof which, when taken together, bear the signatures of each of
the parties hereto shall have been received by the Administrative Agent.
SECTION 10.11. Confidentiality. Each Bank agrees (which
agreement shall survive the termination of this Agreement) that financial
information, information from the Borrower's books and records, information
concerning the Borrower's trade secrets and patents and any other
information received from the Borrower hereunder and designated in writing
as confidential shall be treated as confidential by such Bank, and each
Bank agrees to use its best efforts to ensure that such information is not
published, disclosed or otherwise divulged to anyone other than employees
or officers of such Bank and its counsel and agents with a need to know
such information and who have been informed of the confidentiality
hereunder (as reasonably determined by such Bank); provided that it is
understood that the foregoing shall not apply to:
(i) disclosure made with the prior written
authorization of the Borrower;
(ii) disclosure of information (other than that
received from the Borrower prior to or under this
Agreement) already known by, or in the possession of
such Bank without restrictions on the disclosure
thereof at the time such information is supplied to
243
such Bank by the Borrower hereunder;
(iii) disclosure of information which is required by
applicable law or to a governmental agency having
supervisory authority over any party hereto;
(iv) disclosure of information in connection with
any suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with
the transactions contemplated hereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial
institution) agrees to maintain any such information to
be received in accordance with the provisions of this
Section 10.11;
(vi) disclosure by any party hereto to any other
party hereto or their counsel or agents with a need to
know such information (as reasonably determined by such
party);
(vii) disclosure by any party hereto to any entity,
or to any subsidiary of such an entity, which owns,
directly or indirectly, more than 50% of the voting
stock of such party, or to any subsidiary of such an
entity; or
(viii) disclosure of information that prior to such
disclosure has been public knowledge through no
violation of this Agreement.
SECTION 10.12. Conversion of Currencies.
(a) If, for the purpose of obtaining judgment in any court, it
is necessary to convert a sum owing hereunder in one currency into another
currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the
first currency could be purchased with such other currency on the Business
Day immediately preceding the day on which final judgment is given.
(b) The obligations of each party hereto in respect of any sum
due to any other party hereto or any holder of the obligations owing
hereunder (the "Applicable Creditor") shall, notwithstanding any judgment
in a currency (the "Judgment Currency") other than the currency in which
such sum is stated to be due hereunder (the "Agreement Currency"), be
discharged only to the extent that, on the Business Day following receipt
by the Applicable Creditor of any sum adjudged to be so due in the Judgment
Currency, the Applicable Creditor may in accordance with normal banking
procedures in the relevant jurisdiction purchase the Agreement Currency
with the Judgment Currency; if the amount
of the Agreement Currency so purchased is less than the sum originally due
to the Applicable Creditor in the Agreement Currency, such party agrees, as
a separate obligation and notwithstanding any such judgment, to indemnify
244
the Applicable Creditor against such loss. The obligations of the parties
contained in this Section 10.12 shall survive the termination of this
Agreement and the payment of all other amounts owing hereunder.
SECTION 10.13. European Monetary Union. (a) If, as a result
of the implementation of European monetary union, (i) any currency ceases
to be lawful currency of the nation issuing the same and is replaced by a
European common currency, or (ii) any currency and a European common
currency are at the same time recognized by the central bank or comparable
authority of the nation issuing such currency as lawful currency of such
nation and the Administrative Agent or the Required Banks shall so request
in a notice delivered to the Borrower, then any amount payable hereunder by
any party hereto in such currency shall instead be payable in the European
common currency and the amount so payable shall be determined by
translating the amount
payable in such currency to such European common currency at the exchange
rate recognized by the European Central Bank for the purpose of
implementing European monetary union. Prior to the occurrence of the event
or events described in clause (i) or (ii) of the preceding sentence, each
amount payable hereunder in any currency will continue to be payable only
in that currency. The Borrower agrees, at the request of the Required
Banks, at the time of or at any time following the implementation of
European monetary union, to enter into an agreement amending this Agreement
in such manner as the Required Banks shall reasonably request in order to
reflect the implementation of such monetary union and to place the parties
hereto in the position they would
have been in had such monetary union not been implemented.
245
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
DENTSPLY INTERNATIONAL INC.,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President/
CFO
CERAMCO INC.,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President
CERAMCO MANUFACTURING CO.,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President
EUREKA X-RAY TUBE CORP.,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
MIDWEST DENTAL PRODUCTS
CORPORATION,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
NEW IMAGE INDUSTRIES, INC.,
by
/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President/
CFO
XXXXXX & XXXXXXXX COMPANY,
246
by /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President/CFO
DENTSPLY RESEARCH & DEVELOPMENT
CORP.,
by
/s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: V.P. & Secretary
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
/s/ Xxxx Xxx Xxx
Name: Xxxx Xxx Xxx
Title: Vice President
Xxxxxxx:000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
ABN AMRO BANK N.V.,
individually and as
Documentation Agent,
by
/s/ Xxx X. Xxxxxxxx
Name: Xxx X. Xxxxxxxx
Title: Group Vice President
and Director
by /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address: Xxx XXX Xxxxx,
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
MELLON BANK N.A.,
247
Name: Xxx X. Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx Xxxxxx,
0xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Telecopier No.: 000-000-0000
THE FIRST NATIONAL BANK
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Address: 00 X. Xxxxxx Xx. Xxx 0000
Xxxx, XX 00000
Telecopier No.: 000-000-0000
XXXXXX TRUST AND SAVINGS BANK,
by /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx-00X
Xxxxxxx, XX 00000
Telecopier No.: 000-000-0000
CORESTATES BANK, N.A.,
by /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Asst. Vice President
Address: 000 Xxxx Xx.
Xxxxxxx, XX 00000
Telecopier No.: 000-000-0000
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY,
by /s/ Xxxx X. Xxxxxx
248
Name: Xxxx X. Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx xx xxx
Xxxxxxxx
Xxx Xxxx,XX 00000
Telecopier No.: 000-000-0000
MARINE MIDLAND BANK,
by /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000-0000
Telecopier No.: 000-000-0000
ISTITUTO BANCARIO SAN PAOLO DI
TORINO SpA,
by /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Assistant Vice President
by /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
249
